THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


i^.-r. 


''i'  ... 


^ 


^o  :^h 


I. 


A    SELECTION 


OF 


CASES  AND  STATUTES 


ON   THE 


PRINCIPLES  OF 
CODE    ULEADING 


% 

BY 

CHARLES  M.  HEPBURN 

OF  THE  CINCINNA  TI  BAR 

LECTURER   ON    CODE   PLEADING   IN   THE   LAW   DEPARTMENT   OP   THE 
UNIVERSITY   OF  CINCINNATI 


Prepared  for  Use  as  a  Text-Book  in  Law  Schools 


CINCINNATI 
W.  H.  ANDERSON  AND  COMPANY, 

]901 


.^ 


V.*'._VGoPYEiGnT,    1901,*  •*••' 
Tjy  W-.  H.  Anderson  &  Co. 


T 

190? 


cn 


C9 


PREFACE 


In  the  twenty-nine  years  which  have  passed  since  Professor 
Langdell  published  his  "  Selection  of  Cases  on  the  Law  of 
Contracts,  prepared  for  use  as  a  textbook  in  Harvard  Law 
School,"  there  has  been  a  great  growth  of  similar  case-books  on 
different  titles  in  our  law,  adjective  as  well  as  substantive ;  but 
on  code  pleading,  notwithstanding  its  practical  importance  in 
many  states  of  the  Union,  there  has  been  no  case-book  fitted  for 
class  instruction. 

The  need  of  such  a  book  has  been  felt  by  me  almost  from  my 
first  meeting  with  the  class  in  code  pleading  in  the  Law  School 
of  the  Cincinnati  University.  Our  course  on  that  subject  was 
based  on  a  standard  treatise  and  the  Ohio  code  of  civil  procedure, 
both  supplemented  by  occasional  lectures  on  special  topics,  b)^ 
occasional  illustrations  from  leading  cases,  and  by  the  drafting  of 
pleadings  under  the  code.  There  was  no  systematic  and  direct 
study  of  the  cases  themselves  as  embodying  principles  of  code 
pleading. 

Between  this  method  of  instruction  and  that  which  obtained 
in  classes  where  cases  were  used  as  the  basis  of  instruction, 
there  was  evidently  a  radical  difference.  With  the  latter 
method,  the  instructor  and  every  member  of  his  class  came  into 
direct  touch  with  the  subject-matter  of  their  investigation — the 
cases  embodying  the  principles  whose  nature  and  application 
they  sought  to  understand;  with  the  former  method,  the  law 
student  seldom  got  beyond  the  treatise.  While  reading  about 
the  cases  under  the  codes,  and  the  enactments  of  other  code 
states,  he  was  not  studying  either  at  first  hand,  but  rather  was 
memorizing  the  deductions  from  them  which  he  found  in  the 
treatise. 


►^oorh^^rh 


IV  PREFACE. 

There  was,  however,  no  reason  apparent  why,  with  a  highly 
successful  use  of  cases  in  other  subjects  of  class  instruction,  a 
class  in  code  pleading  also  should  not  go  to  the  fountain  head. 
However  it  may  be  with  some  rules  of  practice  under  the  codes, 
our  law  of  code  pleading,  like  the  law  of  evidence,  is  not  "a 
handicraft  to  be  practised  by  rule  of  thumb,"  but  a  science  con- 
sisting of  a  body  of  principles  to  be  found,  for  the  most  part,  in 
the  adjudged  cases.  Not  only  so,  but  code  pleading  being  a  new 
growth  in  our  law,  there  is,  and  there  will  long  be,  a  special 
reason  for  the  study  of  its  principles  in  their  actual  embodiment. 

For  these  reasons,  and  also  for  the  sake  of  the  experiment,  I 
formed,  three  years  since,  a  small  class  for  the  direct  study,  by 
cases,  of  certain  principles  in  code  pleading  which  the  regular 
class  were  studying  by  means  of  a  treatise.  The  experiment 
was  hampered  by  the  necessity  of  resorting,  for  every  case  used, 
to  the  volume  of  the  reports  containing  it,  but  in  the  main  there 
was  an  obvious  improvement — more  stimulation  in  the  class,  a 
more  earnest  discussion,  a  greater  independence  of  thought  and 
research,  a  firmer  grasp  of  principle,  a  readier  command  of  con- 
crete instance.  The  result  was  my  adoption  of  case-study  as  the 
basis  for  a  large  part  of  the  work  of  the  regular  class  in  code 
pleading.  A  further  result  has  been  the  need  of  printing  the 
cases  and  statutes  which  I  wish  to  use  in  this  method  of  instruc- 
tion. 

It  is  not,  then,  the  aim  of  this  work  to  cover  the  whole  field 
of  instruction  in  civil  procedure  under  the  codes.  The  rules  of 
practice  lie  beyond  its  purpose,  although  many  of  them  are  inci- 
dentally illustrated  in  the  cases  given.  Nor  is  there  any  attempt 
to  give  all  the  enactments  of  code  pleading  which  the  law 
student  should  study.  But  the  leading  purpose  of  the  book  is  to 
facilitate,  especially  for  class  instruction,  the  study  at  first  hand 
of  those  statutes  and  decisions  which  embody  the  principles 
of  code  pleading. 

Ultimately,  of  course,  these  principles,  being  those  of  a  statu- 
tory system,  must  be  sought  in  the  statute  book ;  and  legislators 
have  sometimes  fancied  that  lawyers  would  find  it  unnecessary 
to  go  beyond  the  statute  book  for  a  comprehension  of  the  new 
system.  There  are,  it  is  true,  many  sections  in  our  codes  of 
civil  procedure  whose  full  scope  and  exact  bearing  appear  so 
clearly  that  the  courts  have  had  no  call  to  interpret  them.  But 
this  is  rather  the  exception  than  the  rule.  Certainly,  the  leading 
and  characteristic  enactments,  those  which  embody  the  funda- 


PREFACE. 


mental  principles  of  code  pleading,  have  been  continually  under 
consideration  and  construction  by  the  courts.  The  history  of 
the  new  pleading,  indeed,  repeats  with  striking  emphasis  the 
history  of  more  than  one  famous  achievement  in  statute-making. 
A  code  is  never  the  complete  and  adequate  expression  of  a  com- 
plex system  of  law.  At  its  best,  it  is  but  the  foundation  upon 
which  the  courts  presently  begin  to  build.  We  speak  of  the 
New  York  code  of  1848,  of  the  Missouri  code  of  1849,  of  the 
Ohio  code  of  1853,  of  this  or  that  other  code,  as  if  a  complete 
system  of  code  pleading  had  then  appeared.  But  our  code 
pleading,  as  an  established  system,  came  in  no  such  way.  It  is 
a  growth,  a  slow  growth,  rather  than  the  sudden  creation  of  a 
legislative  fiat.  The  work  in  hand,  then,  has  chiefly  to  do  with 
principles  thus  reached,  principles  which  rest  upon  a  statute,  but 
have  been  in  many  ways  developed,  moderated,  distinguished, 
defined  by  courts  construing  the  statute.  "^ 

There  is  also  another  thing  to  be  kept  in  mind  when  one 
speaks  of  the  principles  oi  code  pleading.  In  its  general  accepta- 
tion in  America,  and  as  used  in  this  work,  the  term  "code 
pleading  "  is  not  a  mere  convenient  designation  for  systems  of 
pleading  which  have  this  only  in  common,  that  they  are  all  of  a 
statutory  origin.  With  the  break-up  of  common-law  pleading,  it 
was  possible,  and  predicted  by  some,  that  the  legislatures  of  the 
different  states  would  create  for  each  a  materially  different  sys- 
tem of  civil  pleading.  This  did  occur  to  a  limited  extent.  In 
the  early  fifties,  before  the  New  York  code  of  1848  had  become 
the  fashion,  several  states,  and  notably  Massachusetts,  enacted 
systems  of  pleading  which,  however  excellent,  have  remained 
peculiar  each  to  its  own  state.  But  it  is  a  fact  of  very  high  con- 
sequence in  our  modern  jurisprudence  that  when  the  break-up  of 
common-law  pleading  came  in  force,  the  states,  as  a  rule,  did  not 
go  separate  ways,  but  carefully  followed  in  the  footsteps  of  one 
leader.  With  slight  differences  in  detail,  the  systems  of  plead- 
ing which  have  been  enacted  in  more  than  half  the  American 
states  are  copied  from  one  model,  that  of  the  early  New  York 
codes.  In  all  these  states,  the  bench  and  the  bar,  building  up  a 
new  system  of  pleading,  have  worked  from  the  same  statutory 
provisions,  and  under  the  influence  of  the  same  judicial  tradi- 
tions. The  process  has  been  more  or  less  halting.  Later  cases 
have  rejected  much  that  was  accepted  in  the  earlier  cases  as 
sound  doctrine  under  the  codes,  and  have  established  distinctions 
of  which  the  earlier  cases  show  no  sign.     The  trend,  however, 


Vi  PREFACE. 

has  been  towards  an  assimilation  of  the  principles  and  rules 
of  code  pleading  in  all  these  different  states.  And  the  general 
result  is  that,  in  the  stead  of  our  inherited  common-law  pleading, 
we  have  in  these  states— the  "code  states," ^  so  called— one  wide- 
spread statutory  pleading.  It  is  this  system  of  pleading— coa'^ 
pleading,  popularly  so  called— whose  principles  are  to  be  sought 
in  the  statutes  and  cases  which  follow. 

In  selecting  these  statutes  and  cases  I  have  had  in  view  also 
the  development  of  this  branch  of  our  law  since  the  enactment 
of  the  code  of  1848.  Under  each  principal  topic  of  code  plead- 
ing I  have,  therefore,  given,  first,  the  original  form  or  forms 
of  the  statute  in  the  earliest  codes,  then  its  present  forms,  after 
the  lapse  of  half  a  century,  in  each  of  the  code  states,  and  then 
a  selection  of  cases  unfolding  the  principles  which  the  courts 
have  found  in  these  statutes. 

The  forms  of  the  statutory  provisions  in  the  different  states, 
are  given  in  the  order  in  which  the  codes  were  originally  en- 
acted, 2  as  being  in  itself  often  instructive  to  the  student  and, 
after  a  little  practice,  hardly  less  convenient  than  an  alphabetical 
arrangement. 

The  cases  also  are  given  in  their  chronological  order,  but  this 
rule  is  departed  from  when,  as  happens  not  infrequently,  a 
different  arrangement  appears  likely  to  be  more  instructive  in 
developing  the  particular  subject. 

Throughout  the  work,  and  especially  on  such  subjects  as  the 
one  form  of  action,  I  have  been  at  some  pains  to  select  cases 
which  present  the  same  principle  from  different  points  of  view, 
and  as  involved  in  the  same  or  different  states  of  fact. 

Occasionally  I  have  given  cases  which  in  strictness  belong  to 
substantive  law ;  but  it  will  be  found,  I  think,  that  this  has  been 
done  only  when  the  doctrine  of  substantive  law  is  so  closely  con- 
nected with  some  leading  principle  of  code  pleading  that  the  lat- 
ter can  not  be  clearly  presented  without  the  former. 

It  need  hardly  be  added  that  my  aim  is  not,  in  any  way  or  de- 
gree, to  supplant  the  study  of  the  particular  code  under  which  a 
law  student  expects  to  practise,  with  a  study  of  codes  in  general. 
On  the  contrary,  a  leading  purpose  of  the  book  is  to  aid  the  in- 
structor in  inciting  every  member  of  a  class  in  code  pleading  to 
investigate  his  own  code.  Various  ways  in  which  this  can  be 
accomplished,  with  a  well-selected   book  of   cases,  will    readily 

1  For  an  enumeration  of  them,  see  page  4  of  the  text. 
«  See  page  4  of  the  text. 


rKEFACt;.  vu 

suggest  themselves — one,  above  all,  a  comparison  of  the  statu- 
tory basis  of  every  decision  with  the  corresponding  terms  of  the 
student's  own  code. 

A  word  as  to  the  use  of  treatises  on  code  pleading.  I  have 
spoken  of  giving  them  up  for  the  cases;  yet  the  treatise  is  often 
of  value  in  class  instruction.  The  difference  lies  in  the  character 
of  its  use.  As  the  basis  of  class  study  and  instruction,  a  treatise 
on  code  pleading  is,  in  my  judgment,  out  of  its  proper  place;  as 
an  auxiliary,  it  serves  a  useful  end  in  more  ways  than  one.  And 
it  is  also  to  be  said  that  with  the  study  of  a  properly  selected 
book  of  cases  on  code  pleading  a  law  student  finds  ver}'  much 
more  of  real  value  in  a  well  written  treatise  on  the  same  subject 
than  he  can  otherwise  hope  to  find  in  it. 

Charles   M.   Hepburn. 
15  AND  16  Carlisle  Building, 

Cincinnati,  October  5,  1900. 


SYNOPSIS   OF   SUBJECT-MATTER. 


PAGE 

Chap.    I. — Origin,  Nature,  and  Extent  of  Code 

Pleading 1-4 

Chap.  II. — The  One  Form  of  Civil  Action  : 

A.  Character  of  the  proposed  change,  in  gen- 

eral             9-14 

B.  Eflfect  of  the  statute  in  adjective  law : 

I.  The  one  form  of  action  in  the  stead 
of  actions  at  law  and  the  suit  in 

equity 15-77 

II.     The  civil  action  and  the  special  pro- 
ceeding         ...       78-85 

C.  Effect  of  the  statute  with    respect  to  the 

distinctions  of  substantive  law  ....     86-187 

Chap.  III. — In    Whose    Name    the    Civil    Action 
should  be  brought: 

A.  The  nature,  in  general,  of  the  interest  re- 

quired to  make  one  a  real  party  in  inter- 
est, within  the  meaning  of  the  codes  .  193-205 

B.  The  real  party  in  interest  when  a  contract 

is  made  with  one  for  the  benefit  of  an- 
other: 

I.  When  the  part}'  with  whom  the 
contract  is  made  is  the  agent  of 
an  undisclosed  principal    ....  206-232 

viii 


SYNOPSIS  OF  SLUJKCT-MATTKK.  IX 

PAGE 

II.  When    the   part}'    with    whom    the 

contract  is  made  contracts  osten- 
sibl}'  for  the  benefit  of  a  third  per- 
son, stranger  to  the  contract : 

C.  The  real  party  in  interest  when  a  chose  in 

action  is  assigned: 
I.     What  choses  in  action  are  assign- 
able: 

I. — Among  rights  in  contract  .  378-398 
2. — Among  rights  in  tort  .    .    .  399-431 

II.  Nature  of  the  objection  that  one 
suing  on  an  assigned  chose  in 
action  is  not  the  real  part}-  in 
interest 432-444 

III.  The   real   party   in   interest  when 

the  assignment  of  the  chose  in 
action  is  absolute : 

I. — Assignment    before  action 

brought 445-461 

2. — Assignment  pendente  lite  .  462-475 

IV.  The  real    party  in    interest  when 

the  assignment  is  subject  to  a 
condition  expressed  on  the  face 
of  the  assignment  or  in  a  collat- 
eral agreement 476-519 

D.  The  real  party  in    interest   under   special 

statutory  relations 520-542 

E.  When  the  action    ma)'  be  brought  in  the 

name  of  one  who  is  not  a  real  party  in 
interest : 

I.  A  trustee  of  an  express  trust;  a 
person  with  whom  or  in  whose 
name  a  contract  is  made  for  the 

benefit  of  another 543-599 

II.     Other  instances   of    actions   in  the 
names  of  representatives: 

I. — Executors  and  administra- 
tors       600-607 

2. — Guardians 60S-611 

3. — Persons  expressly  author- 
ized by  statute 612-627 


/ 


TABLE  OF  CONTENTS 


[The  cases  given  below  include  on'.y  those  which  appear  in  the  text;    for  other  cases, 
quoted  in  the  notes  or  cited,  see  the  table  of  cases  cited.] 


Chapter  I. 

Origin,  Nature,  and  Extent  of  Code  Pleading:  ''^'^^ 

Use  of  the  term  "code  pleading" i 

Its  cardinal  characteristics i 

Its  relation  to  common-law  pleading 2 

Where  code   pleading  now  prevails 3 

"  Code  "  states 3 

"  Common-law  "  states 3 

"  Quasi-code  "  .states 4 

The  "  American  system  " 4 

When  the  codes  were  enacted 4 

Chapter   II. 

The  One  Form  of  Civil  Action  : 

Sec.  I.      The  terms  of  the  statute  : 

The  leading  original  enactments 5 

The  present  terms  of  the  statute 6 

Sec.  II.      The  operation  of  the  statute  : 

A.    character    of    the    proposed    change,    in 

GENERAL: 

The  historic  relation  of  substantive  and  ad- 
jective law 9 

The    forms   of    action    as    the    institutes    of 

English  law 10 

The  confusion  incident  to  the  change  from 
the  formularj^  system  of  actions  to  the  one 
form  of  action 1 1 

The   place  of  the  one   form  of  action  in  the 

sj'stem  of  code  pleading 13 


TABLE  OF  CONTENTS.  xi 

B.       EFFECT    OF    THE    STATUTE    IN    ADJECTIVE    LAW:      ^'''''^ 

I- — The  one  form  of  action  in  the  stead  of  ac- 
tions at  law  and  the  suit  in  equity  : 

Getty  v.  Hudson  River  R.  R.  Co 15 

Crary  z>.  Goodman jy 

Lord  Hanmer  v.   Flight jg 

Williams  z>.  Hayes 20 

Lerov -y.  Marshall ,. 

Note  :  The  constitutionality  of  a  stat- 
ute abolishing  the  distinction  be- 
tween actions  at  law  and  the  suit  in 

equity 26 

Wright  z'.  Hooker ,2 

Dobson  z'.  Pearce ,, 

Phillips  V.  Gorham      . 38 

Cole  z'.  Reynolds ^j 

Grain  v.  Aldrich 

Emery  v.  Pease 

New  York  Ice  Co.  v.  Ins.  Co 

Leonard  v.  Rogan cq 

Lattin  v.  McCarty C2 

White  V.  Lyons cr 

Ricketts  v.  Dorrel 

McGonigle  z'.  Atchison 

Harris  v.  Town  send 

Gunsaullus  v.  Pettit 

Kirkwood  v.  National  Bank 68 

Raymond  v.  Railway  Co 70 

Giles  v.  Lyons -c 

II. — The  civil  action  and  the  special  proceeding: 

T//e  original  ierms  of  the  stahcte  ....         -^-j 
The  present  terms  of  the  statJite 78 

Barger  v.  Cochran yo 

Linton  v.  Laycock 80 

Chinn  v.  Trustees 81 

Note:     Nature  and   instances    of  the 

special  proceeding 83 

C.  EFFECT  OF  THE  CREATION  OF  THE  ONE  FORM  OF 
CIVIL  ACTION  WITH  RESPECT  TO  THE  DISTINC- 
TIONS   OF  SUBSTANTIVE   LAW: 

Note:     Nature  of   the  question    ...  86 

Linden  v.  Hepburn 87 

Howe  V.  Peckham •   .    .    .  90 

Cropsey  v.  Sweeney 03 

Lubert  v.  Chauviteau g6 

Richardson  v.  Means no 

Walter  v.  Bennett 101 


43 

46 


56 
59 
63 
66 


TABLE  OF  CONTENTS. 

PAGE 

Joues  V.  Steamship  Cortes 103 

Dixon  V.  Caldwell ioS 

Gwaltney  v.  Cannon            no 

Connauglity  t'.  Nichols  .    .    .    : m 

Ross  V.  Mather 115 

Supervisors  v.  Decker 120 

Supervisors  v.  Decker 126 

Sternburger  v.  McGoveru     .......  128 

Pierce  v.  Carey      132 

Lockwood  V.  Ouackenbush 135 

Stevens  v.  The  Mayor 136 

Trustees  v.  Kilbouru 139 

Bingham  v.  Stage 142 

Note  :     The  theory  of  the  action  .    .    .  144 

Monnett  v.  Turpie i45 

Peterson  v.  Stoughton  Bank 147 

Dalton  V.  Vanderveer 149 

Devlin  v.  The  Mayor 153 

The  Tiffin  Co.  v.  Stoehr 155 

McClure  v.  La  Platta  Co 157 

Bruce  v.  Foley 158 

Gartner  v.  Corwine 159 

Mentzer  v.  Western  Union  Co 161 

Turner  v.  Stallibrass  . 167 

Jacobson  v.  Elevated  Ry.  Co 170 

Leek  V.  Rudd 171 

Wisner  t'.  Fruit  Jar  Co 172 

Kress  v.  Woehrle 174 

i'ardum  V.  Wolf I75 

Pickens  v.  South  Carolina  R.  R 177 

Ward  V.  St.  Vincent's  Hospital 179 

Brawley  v.  Smith iSi 

Parker  v.  Pullman  &  Co 182 

Davis  V.  Morris 1S5 

Cogswell  V.  New  York  Rv.  Co 186 


Chapter    III. 

In  Whose  Name  the  Civil  Action  Should  Be  Brought  : 

Sec.  I.      The  terms  of  the  statute : 

The  leading  original  enactments 188-189 

The  present  terms  of  the  statute 189-192 

Sec.  n.      The  operation  of  the  statute : 

Note  :     Nature  of  the  question   .    .    «    .    .    .    .  193 


table;  of  contents. 


A.   THE  NATURE  IN  GENERAL  OF  THE  INTEREST     ^""''^ 
REQUIRED  TO  MAKE  ONE  '^  A  REAL  PARTY  IN 
INTEREST"  WITHIN  THE  MEANING  OF  THE 
CODES : 

Deiinison  v.  Soper jg. 

Thompson  z'.  Fargo jq5 

Albany  &  Rensselaer  Co.  z'.  Lundberg,  19S 

Cassidy  v.  Woodward 

Welsh  z/.  Rheinhardt 

Alexander  v.  Overton 203 

Eggeling  t/.  Allen 204 

B.  THE  REAL  PARTY  IN  INTEREST  WHEN  A  CON- 
TRACT IS  MADE  WITH  ONE  FOR  THE  BENEFIT 
OF   ANOTHER : 

I. — When  the  party  with  whom  the  contract  is 
made  is  the  agent  of  an  undisclosed  prin- 
cipal : 


201 
202 


209 
212 


Erickson  z'.  Compton 206 

Hall  v.  Plaine 

Silliman  z:  Tuttle    . 

National  Bank  z'.  Marietta  R.  R.     ...  214 

St.  Louis  Ry.  z'.  Thacher 216 

Schaefer  z'.  Henkel 219 

Nicoll  V.  Burke 225 

Ludwig  z'.  Gillespie 227 

Melcher,  as  Attorney,  v.  Kreiser    .    .    .  22S 

Melcher,  as  Attorney,  v.  Kreiser    .    .    .  230 

II. — When  the  party  with  whom  the  contract  is 
made  contracts  ostensibly  for  the  benefit 
of  a  third  person,  stranger  to  the  contract : 

I.    T/ie  ajfirmative  application  of  the  rule  hi 
general : 

Lawrence  v.  Fox 

Note;:     Cases    for   and   against   the 
general    doctrine  of   Lawrence   v. 

Fox 

Burr  V.  Beers 

Rice  V.  Savery 

Coster  V.  The  Mayor 

Note:     Effect  if  contract   is  under 

seal  .  

Claflin  z).  Ostroni 

Hardesty  v.  Cox 255 

Chouteau  v.  Boughton 256 

Harvey  Lumber  Co.  v.  Herriman  Co.    .  259 


233 


23S 
241 

243 
249 

251 
253 


TABLE  OF  CONTEXTS. 

PAGE 

Beeson  v.  Green 261 

Trimble  v.  Strother 263 

New  York  Life  Ins.  Co.  v.  Aitkin  .    .    .  265 

Clark  V.  Howard 270 

2.     The  lijnitations  -which  attach  to  the  third 
person's  right  of  action,  in  case  of  a  con 
tract  between  others  for  his  benefit: 

Note  :     Scope  of  question 276 

(a)  The  benefit  of  the  third  person  as  the 

purpose  of  the  contracting  parties: 

Garnsey  v.  Rogers 276 

Note  :    Distinctions  in  the  doctrine,  283 

Campbell  v.  Smith 284 

National  Bank  v.  Grand  Lodge  ....  286 

Burton  v.  Larkiu 289 

Enimitt  v.  Brophj' 293 

Constable  v.  National  Steamship  Co.   .  298 

Cincinnati  R.  R.  v.  Metropolitan  Bk.    .  306 

Baxter  v.  Camp 310 

(b)  Whether  there  must  be  a  duty  owing 

from  the  promisee  to  the  third  per- 
son for  'whose  benefit  the  contract  is 
made : 

Vrooman  v.  Turner 314 

Keller  v.  Ashford 318 

Durnherr  v.  Ran 327 

Wager  v.  Link 329 

Marble  Bank  v.  Mesarvey 333 

Jefferson   v.  Asch 337 

Howsmon  v.  Trenton  Water  Co.     .    .    .  341 

Devers  v.  Howard 348 

Todd  V.  Weber 354 

Buchanan  v.  Tilden 360 

Sullivan  v.  Sullivan 370 

Embler  v.  Hartford  Ins.  Co 372 

C.      THE   REAL   PARTY  IN   INTEREST  WHEN   A   CHOSE 
IN    ACTION   IS   ASSIGNED  : 

Note  :     Character  of  the  question    .  376 
I. — What  choses  in  action  are  assignaljle : 

I.    Among  rights  in  contract : 

Sharp  V.  Edgar 378 

Hooker  v.  Eagle  Bank          381 

Whitman  v.  Keith 383 


TABLE  OK  CONTEXTS. 


Ill- — The  real  party  in  interest  when  the  assign- 
ment of  the  chose  in  action  is  absolute  : 

I.    Assignment  before  action  brought: 


Wooliscroft  V.  Norton 
Long  V.  Heinrich  .  . 
Green  v.  Marble  .  .  . 
Cochman  v.  Welsh  .  . 
Walker  v.  Steel  .  .  . 
Lane  v.  Duchac    .    .    . 


PAGE 


Arkansas  Smelting  Co.  v.  Belden  Co.  .  3S5 
Note  :       Instances    of    contractual 

rights  held  non-assignable  ....  390 

LaRue  v.  Groezinger 702 

2.    Among  rights  in  tort  : 

People  V.  Hudson  River  R.  R.  Co.  .    .    .  399 

Butler  V.  New  York  R.  R.  Co 402 

Note  :     The  assignability  of  a  tort 

to  property 404 

Zabriskie  v.  Smith 407 

Byxbie  v.  Wood 412 

Farwell  Co.  v.  Wolf 416 

Note  :  The  statutory  extension  of 
the  survivability  of  causes  of  ac- 
tion    4ig 

Vimont  v.  Chicago  Ry 420 

Note:  Effect  on  the  assignability 
of  a  chose  in   action  if  a  statute 

makes  it  survive 421 

North  Chicago  St.  R.  R.  v.  Ackley    .    .  423 

II. — Nature  of  the  objection  that  one  suing  on  an 
assigned  chose  in  action  is  not  the  real 
party  in  interest : 

Lytle  V.  Lytle 432 

Van  Doren  v.  Relfe 4-^3 

Wilson  V.  Clark 

Robbins  z'.  Deverill 

Hereth  v.  Smith 

Brown  v.  Curtis 


434 
436 
441 
442 


445 

447 

44-^^ 

449 

451 

452 

Steeple  v.  Downing 435 

2.    Assignment  pendente  lite: 

Hastings  v.  McKinley 462 

Dundee  Mortgage  Co.  v.  Hughes  ...  464 


TABLE  OF  CONTEXTS. 

PAGE 

Hirshfeld  v.  Fitzgerald 466 

Reynolds  v.  Quaely 470 

TuflFree  v.  Stearus  Ranches  Co 472 

Emerson  v.  McWhirter         ......  475 

IV. — The  real  party  in  interest  when  the  assign- 
ment is  subject  to  a  condition,  expressed 
on  the  face  of  the  a.ssignment  or  in  a  col- 
lateral agreement : 

Webb  &  Hepp  v.  Morgan  &  Co.     .    .    .  476 

Hilton  V.  Waring 477 

Williams  v.  Norton 479 

Gradwohl  v.  Harris 4S1 

Eaton  V.  Alger      ...            4S2 

Allen  V.  Brown 486 

Eaton  V.  Alger 488 

Curtiss  V.  Sprague 489 

Sheridan  v.  The  Mayor     .                ...  491 

Hays  V.  Hatliorn 493 

Nichols  V.  Gross 496 

White  V.  Stanley 497 

Bell  V.  Tilden 500 

Vimont  v.  Chicago  R}' .  503 

Hoagland  v.  Van  Etten 507 

Hoagland  v.  Van  Etten 509 

Willison  V.  Smith 511 

Note  :     Assignee  for  collection,  the 
assignment  itself  being   absolute 

on  its  face 512 

Minnesota  Thresher  Co.  v.  Heipler  .    .  515 

Giselman  v.  Starr 517 

D.  THE   REAL   PARTY   IN   INTEREST  UNDER   SPECIAL 

STATUTORY    RELATIONS  : 

Weidner  v.  Rankin 520 

Usher  v.  West  Jersey  R.  R 522 

Wooden  v.  Western  N.  Y.  R.  R.     ...  527 

Popp  V.  Cincinnati  Ry 530 

Haynes  v.  Harris 532 

Phinny  v.  Warren 535 

Galpin  v.  Lamb 537 

Greer  v.  Howard 541 

E.  WHEN   THE   ACTION    MAY   BE    BROUGHT    IN    THE 

NAME  OF  ONE  WHO  IS  NOT  A  REAL  PARTY  IN 
INTEREST  : 

I. — A  trustee  of  an  express  trust ;  a  person  with 
whom  or  in  whose  name  a  contract  is 
made  for  the  l^enefit  of  another: 


TABLE  OK  CONTENTS. 


Note:     The   general   conditions  of 

the  doctrine 

Gardner  v.  Armstrong 

Considerant  v.  Brisbane 

Note  :     Other  instances  of  trustees 

of  express  trusts,  etc 

Weaver  v.  Trustees 

Brown  v.  Cherry 

Scantlin  z'.  Allison 

liaj'S  V.  Galion  Gas  Co 

Snider  z'.  Adams  Express  Co 

Piatt  z'.  Iron  Exchange  Bank  .... 

Gard  v.  Neff 

Wetmore  c'.  Hegeman 

Wynne  v.  Heck 

Ferguson  v.  McMahon 

Sanderson  v.  Cerro  Gordo  Co 

Lewis  V.  Whitten 

Hanlon  v.  Ins.  Co 

Henning  v.  Raymond 

Starker  v.  McCosh  Iron  Co 

Kingsland  Co.  z'.  Board  Bros.  ..... 

Ettlinger  v.  Persian  Rug  Co.  .    . 

Note:     Right  of  the  beneficiary  to 
sue  instead  of  the  trustee    .... 


544 
546 

553 
557 
560 

567 
568 
572 
576 
578 
579 
581 
582 
584 
585 
587 
590 
592 
594 
596 

598 


II. — Other  instances  of  actions  in  the  names  of 
representatives  : 

1.  Executors  and  administrators  : 

Sheldon  z'.  Hoy 

Thompson  z>.  Whitmarsh 

Burrell  z'.  Kearn 

2.  Guardians  : 

Note  :     Scope  of  the  question  .    .    . 

Ferine  v.  Grand  Lodge 

Reed  v.  Lane 


600 
603 
605 


608 
608 
610 


III. — Persons  expressly  authorized  by  statute  to 
sue  in  their  own  names  : 

Swift  V.  Ellsworth 

King  V.  Cutts 

Peters  v.  Foste'r 

Gould  V.  Glass 

Hedges  v.  Dam 

Ervin  v.  The  State 

Nebraska  :'.  Hayden 


612 

613 
614 

615 
617 
61S 

62^ 


TABLE   OF   CASES. 


I  This  table  contains  the  cases  given  in  the  text  or  specially  referred  to  there- 
in, and  the  cases  given  or  cited  in  the  editor's  notes.  It  does  not  contain  the 
cases  merely  cited  in  the  text.  The  cases  are  indexed  by  the  name  of  the  plain- 
tiff only.] 

(References  are  to  pages.) 


Alioll   Note   Co.   V.   Hiud 8.')   Iowa,  559 513,   n. 

Abrams  v.  Ctireton 74  N.  C.  523 497,  515,  n. 

Adams  v.  Adams 4    Watts,   110 539 

Albany  and   Rensselaer  Co.   v.   Luud- 

berg   121  U.  S.  451 198,  232 

Alexander  v.  Overton 3(  >  Neb.  503 201,  203 

-Alexander  v.  Overton 52  Xeb.  283 203 

Allen   v.  Addington 7   Wend.   9 413 

Allen  V.  Brown 44  N.  Y.  228 486,  495 

Allen  V.  Kennedy 91   Mo.  324 434 

American  Exchange  Bank  v.  Nor- 
thern Pacific  Ry H\  Fed.   Rep.   130 288,   n. 

American  Nail  Co.  v.  Connelly S  Ind.  App.  398 145,  n. 

American     Telegraph     Co.,     v.     ]\Iid- 

dleton SO  N.  Y.  408 G2 

Ames  V.   St.   Paul   R.   R 12   Minn.   412 209,   u. 

Amonett  v.  Higgins SO   Ky.   409 264,   n. 

Anderson  v.  Case 28  Wis.  505 124,  133.  134 

Anderson  v.   Reardon 4r.   Minn.    185 514,   n. 

Andrews  v.  McDauiel (iS  N.  C.  385   448.  n. 

Anthony  v.  Herman 14   Kan.   494 242.   n. 

Arcade  Hotel  Co.  v.  Wiatt 1   Ohio  C.  C.  55 575,  n. 

Archer  v.  Freeman 124   Cal.   528 422,   n. 

Arkansas     Smetlting    Co..    v.    Belden 

Mining  Co 127  V.  S.  379 385,  394 

Armacost  v.  Lindley 116   Ind.   295 144,   n. 

Armstrong  v.  Vroman 11    Minn.    220   538 

Arnand  v.  Grigg 29  N.  J.  Eq.  482 283.  n, 

Arnold  v.  Lyman 17  Mass.  400 235 

Atchison  R.  R.  v.  Ins.  Co 7  Kan.  App.  447 404,  u. 

Atkinson  v.  Waterworks  Co 2  L.  R.  Exch.  Div.  441 314 

Austin   v.    Seligman IS   Fed.   Rep.  519 292 


XX  TABLE   OF   CASES. 

(References  are  to  pages.) 

B 

Baii-d  V.  Brooks 05  Iowa,  40 535,  n.,  536,  ji. 

Eager  v.   Phillips 17  Abb.  X.  C.  425 609  n. 

Baker  v.   Bryan ">4  Iowa,  .jf.l 348,  u. 

Baker  v.  Howell 0  Serg.  &  K.  4Tt; 62,  63 

Balue  V.  Taylor 136   Ind.   368   144,    u. 

Bancroft  v.   Scribner 21  C.  C.  A.  3.52 391,  n. 

Bangs  V.  Dunn 66   Cal.   72 391,   n. 

Bank   of   Odessa   v.   .Tennings    IS  Mo.  App.  651 209,  n. 

Barger  v.  Cochran 15  O.   S.  460 79,  SO 

Barham  v.  Bell 112  X.  C.   131 209,  n. 

Barker  v.  Buklin 2   Denio,   45 234,   242 

Barnwell  v.  Marion 54   S.   C.   223 610.   ii. 

Bassett  v.  Hughes 43  Wis.  319 252.  n.,  269,  n. 

Bassett  v.  Inman 7  Colo.  270 514,  n. 

Baxter  v.  Camp 71    Conn.    245    310 

Beak  v.  Haas 31  Mo.  App.  180 545,  n. 

Becker  v.  Waterworks "9  Iowa,  419 345 

Bedell  V.  Carll 33  N.  Y.  581 113 

Bedford  v.  Sherman G8  Hun,  317 492,   n. 

Beers  v.  Shannon 73  N.  Y.  292 <'.0(;.  n..  607,  n. 

Beeson   v.    Green 103    Iowa,    40(5    261 

Belknap  v.   Sealey 14  N.  Y.   147 117 

Bell   V.   Tilden 16   Hun,  346   .500 

Bennett   v.    Sweet 171  Mass.  600 422.  ii. 

Berkshire  Life  Ins.  v.  Hutchings  .  .  .100   Ind.  496 264,  u. 

Bethany  v.  Howard 149  Mo.  504 353 

Biddle  v.  Brizzolara 64  Cal.  354 264.  n. 

Bidv.ell  V.  The  Astor  :Mutual  Ins.  Co.l6  N.  Y.  263 .54 

Bigelow  V.  Draper 6  N.  D.  1.52 627,  )). 

Bingham,  Adm'r  v.   Stage 123   Ind.   281    142 

Black  V.  Boyd 50  O.   S.  4i; tjT,  n. 

Bliss  V.   Lawrence 58  X.  Y.  442 .391,  n. 

Blyer  v.  Monholland 2   Sandf.   Ch.   478 277 

Boardman  v.  Beckwith 18   Iowa,   292   .5.54,   n. 

Boatman  v.   Lasley 23  O.   S.  614 .391.  n. 

Borden    v.    Boardman 157    Mass.   410 239.    n. 

Borland  v.  Welch 162   X.   Y.    104   370 

Boston  Ice  Co.  v.   Potter 123  Mass.  28 390.  n..  394 

Bostwick  V.  Bryant 113  Ind.  448 497.  n.,  51.5,  n. 

Boutiller  v.  The  Milwaukee 8  Minn.  M7 .521 

Bowen  v.  Beck     94  X.  Y.  86 242,  n. 

Bowery  Bank  v.  Wilson 122  X.  Y.  478 391,  n. 

Boyd  V.  Corlntt 37  Mich.  .52 514.  n. 

Bradley  v.  Aldrich 40  X.  Y.  .504 131 

Brady  v.  Xally 151   X.  Y.  258 226 

Brawley  v.  Smith S  Kan.  App.  411 181 

Brayton  v.  Jones 5  Wis.   117 1 27 


TABI^E   OF   CASES.  X.\i 

(References  are  to  pages.) 

Brewer  v.  Dyer 7  Cush.  337 235 

Brewer  v.   Mauer   38  O.  S.  543 2G4,  n. 

Brierly   v.    Equitable   Aid 170  Mass.  218 239,  n. 

Briggs  V.  Munchon o(>   Mo.   466 209,   'i. 

Briggs  V.   Partridge 64  N.  Y.  357.  .220,  222,  225,  226,  311 

Brooks   V.    Hanford lo  Abb.  Pr.  342 401,  n. 

Brown   v.   Cherry oO  Barb.  635 560,  560 

Brown  v.  Curtis —  Cal.   —    442 

Brown  v.   Penfield 36  N.   Y.   473 485,  495 

Brown    v.    Stillman 43    Minn.    126    340 

Bruce    v.    Foley    18  Wash.  96 1.58 

Bryant  v.  Herbert 3  C.  P.  D.  389 168 

Buchanan  v.  Tilden 158  N.  Y.  109 360,  371 

Buckley  v.  Gray 110  Cal.  339 ^94,  n. 

Buermann  v.  Buermaun 17  Abb.  N.  O.  391 609,  n. 

Burke   v.   Andis 98  Ind.   59 461.   n. 

Burr  V.  Beers 24  N.   Y.   178 241,  251,  253,  278 

281,   315,   317,   326,  n.,   327,   333,   359 

Burrell   v.   Kearu 34   Ore.   501    605 

Burton  v.  Larkin 36  Kan.  246 289 

Butler   V.    New    York    R.    K 22  Barb.   110 402 

Butler  V.  Rockwell 14  Colo.   125 479,   n. 

Butterfield   v.   Hartshorn 7  N.  H.  345 239,  n. 

Byxbie  v.  Wood 24  N.  Y.  607 397,  n.,  412 


Campbell  v.  Smith 71    N.   Y.   26   284 

Carmel  Gas  Co.  v.  Small 150   Ind.   427 144,   n. 

Carnahan  v.  Tousey 93  Ind.  561 239.  n.,  269,  n. 

Carney  v.   Gleissner 62  Wis.  493 85,  n. 

Carter  v.  Zenblin 68  Ind.  436 239,   n. 

Cassidy  v.  Woodward 77   Iowa,  354 201 

Catron  v.  Lafayette  County 106  Mo.  659 610,  n. 

Chapin   v.   Longworth 31  O.  S.  421 .391,  t). 

Cheney  v.  Newberry 67  Cal.  126 463.  n. 

Chicago  Gen.  Ry.  Co.  v.  Capek.   .    .  .82  111.  App.  168 431 

Chicago   Ry.   v.   Bills 104  Ind.   13 144,   n. 

Chicago  Ry.  v.  Burger 124  Ind.   275 144,  n. 

Chinn  v.  Trustees 32   O.   S.   236 81 

Christe  v.  Chicago  Ry 104   Iowa.   707 521 

Chouteau  v.  Boughton 100  Mo.  406 256,  404.   n. 

Chung  Kee  v.   Davidson 102  Cal.  188 240.  n. 

Cincinnati   Railroad  Co.  v.   Metropol- 
itan Bank .54  O.   S.   60 .306 

City  Bank  v.   Perkins 29  N.  Y.   .554 485,  494 

Claflin  V.   Ostrom .54   N.   Y.   .581    253 

Clark  V.  Des  Moines 19  Iowa.   212 346 

Clark   V.   Fosdick 118  N.  Y.  7 554,  n. 


XXll  TABLE   OF  CASES. 

(References  are  to  pages.) 

Clark   V.   Howard i.")0  X.  Y.  232 270 

Clark  V.   Phillips 21   How.  87 484 

Clark  V.  Titcomb 42  Barb.  122 554,  n. 

Clegg   V.    Newspaper    Union 72  Hun,  395 383,  n. 

Clements   v.   Hull   3.j  O.  S.  141 451,  a. 

Coakley  v.  Maher 3<;  Hun,   157 609,   n. 

Cogswell  V.  Railroad  Co 103  X.  Y.  10 170,  186 

Cogswell  V.   Railway  Co 105  X.  Y.  319 147.  n.,  180 

Cole  V.  Reynolds IS  X.  Y.  74 41 

Comegys  v.  Emerick 134   Ind.   148 144.   n. 

Commissioners  v.  Caudle 123  X'^.  C.  682 627,  u. 

Commissioners  v.  Glass 10    Barb.    179    615 

Commissioners   v.    Jameson 86   Ind.   154 497,   n. 

Conaughty  v.  Xichols 47  N.  Y.  83 Ill,  120,  135 

Considerant  v.  Brisbane 22   X.  Y.   389 200,  502,  n,  546,  558 

5t'>5 

Constable  v.   Xational   Steamship  Co.l54  U.   S.  51 298 

Conyngham  v.   Smith 16    Iowa,    471    195 

Coolidge  V.   Smith 120    Mass.    554   232 

Copeland  v.  Summers 138  Ind.   219 144,  n. 

Corbett  v.  Packington 6  B.  &  C.  268 169 

Cornell  v.  Prescott     2  Barb.  16 277 

Costello  V.  Herbst 18  Misc.  176 492,  n. 

Coster  V.  The  Mayor 43  X.  Y.  399 249.  306.  309 

Cottle  V.  Cole 20  Iowa,  485,  195,  201.  442.  n.,  487.  n. 

Cottrell  V.  Aetna  Life  Ins.   Co 97  Ind.  311 144,  n. 

Crary  v.  Goodman 12  X.  Y.  266 17.  27,  49,  137 

Crescent  Furniture  Co.  v.  Raddatz  .  .  28  Mo.  App.  210 583,  n. 

Cridler  v.  Curry 66    Barb.    336 598,    n. 

Cropsey  v.  Sweeney 27   Barb.   310 93 

Crowell  V.   St.  Barnabas  Hospital    .  .  27  X.  J.  Eq.  650.  .264  n.,  283.  u.,  324 

Cumberland  v.   Codrington 3  Johns.  Ch.  254 279.  3.59 

Cummings  v.  Morris 25  X.  Y.  625 488.  494 

Curran  v.  Weiss 6  Misc.  130 513,  n. 

Curtis  V.  Gooding 90  Ind.  45 442.  n. 

Curtis  V.   Mohr 18   Wis.   615 470.   n. 

Curtis  V.  Railway  Co .  .87    Iowa,    622 165 

Curtiss  V.  Sprague 51   Cal.  239 489 

Curtis  V.  Tyler 9   Paige,  432 317 

Cushman  v.  Welsh 19  O.   S.  536 449 

D 

Dalton  V.  Vanderveer 31  Abb.  X.  C.  430 149.  171 

Darling  v.  Noyes 32    Iowa.   96 209.    n. 

Davis  V.  Erickson 3   Wash.  6.54 514.   n. 

Davis  V.  D.  &  H.  Canal  Co 109   X.    Y.   47 444 

Davis  V.  Morris 36  X.  Y.  .569 147.  n..  185 

D.nvis  V.  National  Bank 45  X'eb.   580 239.  n. 


TABLE  OF  CASES.  xxiii 

(References  are  to  pages.) 

Davis  V.   Water  Works  Co i<>    \ev.    44    344 

Day  V.   Vinson 78   Wis.    l'J8 398,   n. 

Dayton   v.   Connali    18  How,  Pr.  32G G03,  d. 

Dayton  v.  Joiinson C!)   N.   Y.   419 r)91,    n. 

Dean    v.   American    Legion l.">0   Mass.   4.35 239,   n. 

Dean  v.  Walker 107    111.    540 2.02,    n. 

Delaware  County  v.  Diel)oId  Safe  Co.l33   U.    S.   473 390,   n. 

Dennick   v.   Railroad   Co 103  U.   S.   11 524,  529 

Dennison  v.  Soper 33    Iowa,    183    19 1 

Deuel  V.  Newlin 131   Ind.  40 442,   n.,  497,   515,   u. 

Devers  v.   Howard 144   Mo.   671 337,  348,  353 

Devlin  v.  The  Mayor 23   N.   Y.    Supp.   888 153 

Devlin  v.  The  Mayor 03  N.  Y.  8 387,  397,  n. 

Dickson  v.  Merchants'  Elevator  Co.  .44   Mo.   x\.pp.   498 404 

Dingeldein  v.  Third  Ave.   K.  R .37    N.    Y.    .575 243,    n. 

Dix  v.  Akers 30    Ind.    431 554,    n. 

Dixon  V.  Caldwell 15    O.    S.    412 108 

Dobson   V.   Tearce 12  N.  Y.  156 27,  33,  137 

Doll  V.  Railroad  Co 21  Ind.  App.  .571 145,  n. 

Dollner  v.  Gibson 3   Code   Rep.   1.53 33 

Douglas   V.   Muse —  Kan. —      465 

Draper   v.   Farris 56   Mo.   417 584,  n. 

Drew   V.    IMilwankee   R.    R Fed.   Cases,   4079 521,   n. 

Dubbers  v.  Goux 51  Cal.  163 627,  n. 

Duncan  v.  Hawu 104    Cal.    10 385,    n. 

Dundee  Mortgage  Co.   v.   Hughes   .   .89    Fed.    Rep.    182 464 

Dutton    V.    Poole    2  Lev.  210,  1  Ven.  318, 

251,  340,  357,  365,  371 

Durnherr  v.  Rau 135  N.  Y.  219 327,  367,  369,  374 

Dykers  v.  Townsend 24   N.   Y.   57    229 

E 

Eaton  V.  Alger .57    Barb.    179 482 

Eaton  V.  Alger 47  N.  Y.  345 488,  495 

Eggeling    v.    Allen 25  Misc.  496 204 

Ellis  V.  Harrison 104  Mo.   270 239.   n. 

Elmquist  v.  Markhol 45   Minn.   305 514,   n. 

Embler   v.    Hartford   Boiler    Ins.    Co.  1.58    N.    Y.    4.31 372 

Emerson  v.  McWhirter —  Cal  —    475 

Emery  v.  Pease 20  N.  Y.  62 46,   184 

Emmitt  v.  Brophy 42  O.   S.  82 252,  n..  293 

In  re  Empress  Engineering  Co 16  Ch.   D.   125 239.   n. 

Erickson  v.  Compton 6  How.   Pr.   471 206 

Ervin  v.  The  State 1.50    Ind.    3.32 618 

Ettlinger  v.  Persian  Rug  Co 142  N.  Y.  189 482.   .596 

Evans  v.  Pease       —  R.   T.  — 592.  n. 

Exchange  Bank  v.  Rice 107   Mass.   .37 239,    n. 


TABLE   OF   CASES. 
(References  are  to  pages.) 


Fail-child  v.  N.  E.  Ass'ii 51    Vt.    613 252,    u. 

Farley  v.  Cleveland 4  Cow.  432 234,   237,  317 

Farnum  v.  Peterson     Ill    Mass.    148 458 

Farwell  Co.  v.  Wolf    90   Wis.    10 412,    n..    416 

Feder  v.  Field 117  Ind.  386 144,  n. 

Felton  V.  Dickinson 10  Mass.   287 237,  340 

Ferguson  v.  McMahon 52    Ark.    433 582 

Ferris  v.  Water  Co 16    Nev.    44 344 

Fidelity  Co.  v.  Ballard  Co —  Ky.  — 555,  n. 

Field  V.   Chipley 79    Ky.    260 391,    n. 

First  Baptist  Chnrch  v.  Branhani.  .  .90   Cal.   22 .598 

Fitzgerald  v.  McClay 47   Neb.   816 348,    u. 

Follansbee  v.  Johnson 28  :\Iinn.  311 239,   n..  262,   338 

Forrest  v.  The  Mayor 13   Abb.    Pr.   350 602,    n. 

Fowler  v.  Water  Co 83    Ga.    219 344 

Francisco  v.  Smith (u   Hvin  225 492,  n. 

Fried  v.  New  York  R.  R 25  How.   Pr.  285 412.   n. 

Frost    V.    Duncan    19    Barb.    560 62 

Fulton   Fire  Co.   v.   Baldwin 37    X.    Y.    648 404,    n. 

G 

Gadd  V.  Houghton 1    Ex.    D.   357 199 

Gage  V.  Kendall 15   Wend.   640 495 

Galpin  v.  Lamb 29    O.    S.    529 537 

Gard  v.  NefiE 3!>   O.    S.    60r 578,    611,    n. 

Gardinier  v.  Kellogg 14   Wis.   605 554,   n. 

Gardner  v.  Armstrong 31    Mo.    535 544 

Garnsey  v.  Rogers 4<'  N.  Y.  233.  .274,  276,  285,  286,  n. 

301.  306,   328,  339,  374 

Garret  v.  Stuart 1    McC.   514 105 

Gartner   v.   Corwine 57    O.    S.    246 1.59 

Gaskell  v.  Morris 7   Watts  &   Serg.   32 5.39 

Gates  V.  Northern  Pacific  R.  R 64   Wis.    64 404.    n. 

Getty  V.  Hudson  River  R.  R (">   How.   Pr.   269 15 

Giffert    v.    West 33    Wis.    617 122 

Glfford  v.  Corrigan 105   N.    Y.   223 268 

Gifford  v.  Corrigan 117    N.    Y.    257 268,    269 

Giles  v.  Lyons 4    X.    Y.    600 75 

Gillet  v.  Fairchild 4  Denio.  80 399.  u. 

Giraldin  v.  Howard 103    Mo.   40 440 

Giselman  v.  Starr 106   Cal.   651 51 7 

Goodnow  v.  Litchfield 63   Iowa.    275 513,    n. 

Gordon  v.  Hostetter 37  X.  Y.  101 41().  n. 

Gould   v.    National   Bank 86  X.  Y.  75 151 

Gould   V.    Glass   19    Barb.    179 615 

Tower  V.  Stockdale 5  Colo.  App.  489 514,   n. 


TAHI-K    OK   CASKS.  XXV 

( IJcrci-.MK  es  are  to  pages.) 

(ii-iulwolil  V.   Harris '-'IJ   Cal.    loO 4.S1 

<Ji-ah:uii    V.    CliiciiKo    l{.\ '>'■'>    Wis.    47o 141,    n. 

(Ji-iiiii   V.   Al(lri<li o.^    Cal.    ~>\4 4:!.    :JT<; 

(li-ay  V.  .louniai  of  Fiiianct' 2     Misc.    2r.(» -JOl 

(Jrn.v  V.   Wells IIS    Cal.    11 H;:;.    ii. 

(Jreen  v.  (Jrove.s !(»!>   Iiid.   .■")l!t 144,   ii. 

GrtHMi    V.    Marl)le •'>i     Iowa.    Ii."! 448 

<Treen  v.  Morrison •">   Colo.    IS 242,    ii. 

'Jroeii    V.    Turner    SO   Fed.    liep.    41 ;J2»».    n. 

Creeii   v.  Turner S(i  Fed.  Rep.  837 321;,  n. 

(ireenliekl    v.    ^lassacliuselts    Ins.    Co. 47    N.   Y.   431    555,   n. 

(irf er   v.    Howard   41    O.    S.   5I>1 541 

Gregory.  Adm'r  v.  C.  C.  C.  ^:  I.  It.  It. 112  Ind.  38.5 144.  n. 

(ireij;  v.  Uiordan '.»!>   Cal.    31(i .")13,    n. 

(Jrinnell  v.  Sdimidt 2    Sandf.    700 438.    'tCA 

(Jross  V.  Gross 2(;    Misc.    385 CO."*,    n 

Giierney   v.   Moore 131    Mo.   r».")0 ."»12,    n. 

CJullickson  v.  Madsen 87   Wis.    19 141.    n. 

Gunsaullus  v.   Tettit -iW  O.   S.   27 fiC,.    147 

Gwaltney  v.  Cannon 31     Ind.    227    110 

H 

Ilaight  V.  Iloyt 10   N.    Y.   404 412.    n. 

Haislit   V.   8ahler .30    Barb.    218    224 

Hall  V.  Manson !H)    Iowa,    585 16G 

Hall   V.   Marstou   17   Mass.   575 235,   2.50 

Hall  V.  riaine 14    O.    S.    417 200 

Ilallahan  v.  Herbert 57    X.    V.   400 S5.    n. 

Ilalleck  V.  Mixer 10    Cal.    574 03,    002 

Ilallett   V.    Larum —  Idaho,  —   027.  n. 

Halsey  v.  Reed 0  Paige.  440 277,  .".17.  .32t;.  n..  331 

Hamilton  v.  Wright 37    X.    Y.    502 4.58 

Hainniond  v.  R.  R.  Co 0   S.   C.   130 17S.   179 

Hampton  v.  Phipps 1(tS  V.   S.  200 323 

Hanlon  v.  INIetropolitan  Ins.  Co 0   Misc.   7<>    587 

Hanmer  v.  Flight 24   W.   U.  340 18 

Hansley    v.    Railroad    Co    115   X.   C.   002 178.   179 

Ilarberg  v.  Arnold 7S    Mo.    Ai)i).    237 33(> 

TIardesty  v.  Cox 53    Kan.    018    25.5 

Hardy  Implement  Co.   v.   Soiilh   Bend 

Iron    Works 129   INIo.    222 391,   n. 

Hnn>   V.    Murphy    45  Xeb.  80!) 336 

Harlan  v.  Harlan 15   Pa.   St.   507 03 

Harney  v.  Dutcher 15   Mo.   89    434 

Harris  v.  Townsend 52    Ark.    411 03 

Hartigan  v.    Southern   Pacific   By.    ..80  Cal.   142    521,   n. 

Hartford   Co.   v.    Monroe 41     Conn.     112 599.    n. 

II;M-t]ey  v.  Keokuk  Rv S.",  Iowa.  455 83.  n. 


XXVI  TABLE   OF   CASES. 

(References  are  to  pages.) 

Harvey  Lumber  Co.  v.  Herriman  Co.39  Mo.  App.  214 239,  n.,  250 

Hassie  v.  G.  I.  W.  U.  Congregation. 3.")   Cal.   37S 44 

Hastings  v.  McKinley 1    E.    D.    Smith,   273 4ii2 

Hauenstein  v.  Kull 59   Ho.   Pr.   24 GOO,   u. 

Hang  V.  Riley 101   Ga.   372 514,    n. 

Hawley  v.  Chicago  Ry 71    Iowa,    717 421,    a. 

Haynes  v.  Harris   33  Iowa,  516 532,  535,  53<J 

Hays  V.  Galiou  Gas  Co 29    O.    S.    330 568 

Hays  V.   Hathorn 74   N.   Y.   486 493 

Hays  V.  Montgomery 118    lud.    91 144,    u. 

Head  v.  Railroad  Co 79   Ga.    358 178 

Hecht  &  Imboden  v.  Canghron  .  .      .46  Ark,  132 239,  ii. 

Hedges  V.  Dam 72   Cal.   520 617 

Helms    V.    Kearns    40  Ind.  124    242,  n. 

Hendrick  v.  Lindsay 93  U.  S.  143 300,  322,  359 

Henuing  v.  Raymond 35    Minn.    303 .590 

Henricus  v.  Englert 137   N.   Y.   4S8    225 

Hereth  v.  Smith   33  Ind.  514    441 

Hicks  V.  Hamilton 144   Mo.   495    336 

Hilton  V.  Crooker 30   Neb.    707 391.   n. 

Hilton   V.   Waring 7  Wis.  492 477 

Hirshfekl  v.  Fitzgerald 157  N.  Y.  160 466 

Hoagland  v.  Van  Etten 22   Neb.   681 507.   509,   510 

Hodgman  v.   Western  Ry 7  How.   Pr.  492 401,  u. 

Hooker  v.  Eagle  Bank 30   N.   Y.   83 381 

Hooper   v.   Chicago   Ry 27  Wis.  81 556,  ii. 

Horn    V.    Indianapolis    Bank 125  Ind.  381 144,  n. 

Howard  v.  Crowther 8   M.   &  W.   603 429 

Howe  V.  Peckham •>    How.    I'r.    229 90 

Howe   V.   Wilson    1   Den.   181 62.   63 

Howsmon  v.  Trenton  Water  Co 119   Mo.   304 .3.3<;.   341.  351 

Hoyt  V.  Thompson 1    Sekl.    347 400 

Hudson  Canal  Co.  v.  B»nk 4   Denio,  97 234.  235.  250 

Hunt  V.  Conrad 47   Minn.   557 401,   n. 

Hunter  v.  Commissioners 10  O.  S.  51-5 555.  n. 

Hutchinson  v.  ]\Iyers 54    Kan.   290    .598 

Hyatt   V.   Adams   K!    INIich.    180 521,   n. 

I 

Iselin    V.    Rowlands 30   Ilun.   482 501,   n. 


Jackson   v.   Dagget 24   Ilun,   204    412.   n. 

Jackson  v.  Landers 134  Ind.   520    144.  n. 

Jacobson  v.  Elevated  Ry.  Co 48  N.  Y.  Supp.  1072 145.  n..  170 

James  v.  Chalmers 2    Seld.    215 48  1 

Jefferson    v.   Asch   53   :\Iinn.   446    P>P,7 


TABI.K    OK   CASKS.  xxvii 

I  Kcfcrenci's  are   i»  pages.) 

Johaniu's  v.  riionix  Iiis.  Co •'•r.     Wis.    ."tO 2."j'.>,    ii. 

Johns  V.  Xorthwf stern  Ass'n ST    Wis.    114    123 

Johnson    v.    Knapp 30   Iowa.    (IK; ^'.iS,    n, 

Johnson   v.   Wells,   Fargo  &  Co <)  Xev.  2\14   1(;4 

Jones   V.   Sreamship   Cortes 17    Cal.    4ST     103 

Jordan  I'lankroad  v.  Morley -3    X.    V.    'Ct'.', 113 

Jordan  v.  White 20    Minn.    !»1 238,   n. 

Josselyn   v.    Edwards ."57   Ind.  21  "J 243,   n. 

Judy    V.   Gilbert 77  Ind.  0<;    144,   :>. 

Julian    V.  Hoosier  Drill  Co 78    Ind.    408 404,    n. 

K 

Kansas   City   ex   id.   v.   O'Conncll    ..!»'.)    .Mo.    '.'Ju     3.j1 

Kansas  Midland  liy.  v.  P.rehni 'A   Kan.    751 403,   n. 

Kaufman  v.  Xational  Bank    31    Xel).   (i()7 239,   n. 

Keller  v.  Ashford 133  U.   S.  (510 30(;,  326,  u. 

Kent  V.  Chapel G7  Minn.  420 401,  n.,  421,  n. 

Kent,  Village,  v.  Dana 100  Fed.  Rep.  .")(; 514,  n. 

Kewaunee  Co.  v.  Decker 30   Wis.   024 120.   132,   140 

Ke^vaunee  Co.  v.  Decker 34   Wis.   378    120 

Kilhourn  Lodge  v.  Killiourn    74    Wis.    4."»2    139 

Killniore  v.  Culver 24    Barb.    (;.")()    484 

Kimball   v.   Spicer 12  Wis.  (508 .").")4,  n. 

King,  in  re 42  Hun,  607   S.l.  n. 

King  V.  Cntts 24   Wis.   62.5    613 

King   V.    Murphy    49    Xeb.    (!7t) 348,    n. 

King  V.  Whitely 10   Paige.  40.1.  .  .  .277.   270.  314,  317, 

330,    339 

Kinnoy  v.  Dulnth  Ore  Co 58   Minn.    4.V> 38.5,   n. 

Kingsland  v.  Douglas <;0   .Mo.   Api).   0(12 .594 

Kiugsland  v.  Stokes 58    How.    I*r.     1 003 

Kirkwood  v.  Xational  15nnk 40  Xeb.  484    08 

Kirsch   v.   Derby   Ot;    Cal.    002 003.    n. 

Knadler  v.   Sharp :Ut  Iowa  232 ol.3.  n. 

Knapp    V.    Swaney    .5(;    Mich.    .345 348.    n. 

Knowles   v.    Gee 4  How.  Pr.  317    22 

Koelsch  V.  ;Mixer 5   Ohio   C.    C.   404 67.    n. 

Kress  v.  Woehrle 23   .Misc.   472    174 

Krulder  v.   Ellison 47    X'.    V.    :l(> o.5G,   n. 

L 

Ladd   V.   Arkell 37   X.    V.   .".5 5.5t;,   u. 

Lanipert  v.  Gas  Light  Co 14    Mo.    App.    370 .348 

Lane  v.  Duchac  73    Wis.   040    4.52 

Lane  v.  Schlemmer 114  Ind.  290 144.  n. 

Lancaster  v.  Ins.  Co 02    .Mo.    4(iO     2.58 

Lang  V.   Honry 54    X.    IT.   57 239.   n. 


xxvui  TABLE   OF   CAStCS. 

(References  are  to  pages.) 

J>.augdon  v.  Langdou 4    Gray,    180    488 

Lansden   ,'.  McCarthy 45    Mo.    100    394 

La  Rue  v.  Groezinger 84    Cal.    281    392 

Lasar  v.  Johnson 12">  Cal.   549 554,  n. 

Lattin  v.   MeCarty 41    N.   Y.    lUT    52 

Larah  v.   Buckmiller IT    X.    Y.   (J26    54 

Law    V.    Paruell 7   C.   B.   N.   S.   282 514.   n. 

Lawrence   v.    Fox 2u   X.   Y.   2G8    233,   242, 250,   253 

2(;9,  272.  278.  279,  280,  285,  294,  n.. 

::*.0(!,  309,  315,  316,  328,  333,  339. 
343,   307.    374 

Lawrence  v.   Martin 22    Cal.    174 401.    n. 

Lazard  v.  Wheeler 22    Cal.    140 404.    n. 

Leake  v.  Ball 110    Ind.    214 230,    n. 

Leek  v.   Rudd 55   X.    Y.    Supp.    208 14.5.    n..    171 

Lee    V.    Pennington 7   III.  App.  247 514.  n. 

Lee   V.    Simpson 29    Wis.    333    125 

Lehmann  v.  Farwell 95    Wis.    185 421.    n. 

Lehman  v.  Press 10<;    Iowa,    289 497.   n..   513,   u. 

Leonard  v.  Xavigation  Co 84  X.  Y.  48 524 

Leonard  v.  Rogan 20   Wis.    540    50 

LeRoy  V.  Marshall 8   How.   Pr.   373 23 

Lewis   V.    Covillaud    21    Cal.    17!) 240,  n. 

Lewis  V.  Graham 4    Al)b.    Pr.    100 553.   n. 

Lewis  V.  Whitten 112   Mo.   318    585 

Linden  v.   Briestein 23  Misc.  0.55 492,  u. 

Linden  and  Fritz  v.   I[ei)l)ui-ii.  et  al.  5    How.    Pr.    188 87 

Linton   v.    Havley   104   Mass.   353 422.   n. 

Linton  V.  Laycock 33    O.    S.    128 80 

Litchfield   V.    Flint    104    X.    Y.   543 007 

Little  V.  Banks 85    X.    Y.   289 300 

Livingston   v.    Proseus 2    Hill,    .520    4.57 

Lockwood  V.  Quackenliush 83    X.    Y.    007 135.    144.    n. 

Long  V.  Heinrich 40    Mo.    003    447 

Longfellow  v.  McGregor (!1     Minn.    494 514.    n. 

Lord  Hanmer  v.  Flight 24    W.    R.    346 18 

Louisville  Railway  Co.  v.  Bryan 107    Ind.    .51 144.    n. 

I>uliei-t  V.  Chauviteau .">    Cal.    4.58    90 

T>udwig  V.  Gillespie 105  X.  Y.  0.53 227.  .584,  n. 

Lytle  V.  Lytle 2    Mete.    127    4.32 

n 

.Mr.Viiluu-  V.  (ireen  Bay  Co 34   Wis.    139 403,   n..   4ii4.   n..   417 

McCartney  v.  Wyoming  Bank    1    Wyo.    382 239.    n. 

:McClure  v.  La  Plata  County 23   Colo.   130    1.57 

McCrory  v.  Parks 18   O.    S.    1 07.    n. 

McDaniel   v.   Pressler :',   Wash.   0.3() 514.   n. 

MiDonough    v.    Dillingham 4."'.    Hun.   49.3    17<i 


TAHr.l",    OI"    CASKS.  X.\1X 

(  Kcrt'n'iUL'ii  are   U>   paK''^*- 1 

.M(I>(.ucll   V.   Lacr 'dTy    Wis.    171 IJ.'.L'.    u. 

:\l((Jcaii   V.   M.   ]•:.    li.  Co 1:«     X.     v.    '.) 4(kS 

McCioiiinlc    v.    Atchison '•'•'•>     Kan.     i2t)     ")» 

Mcllonry  v.  rjiinlcr •")-    Iowa,    ."{(i,") r)Sr).    n. 

McKec    V.    Lin.'luM-uMT •>'■>    X.    C    '^'M .j.'JS 

MfKee    v.   Jndd    l'-!    X.    V.    0:.'2.  .:j!»S.    n..   404.    ii..   409, 

415 

.M<  Kinl.'v   V.   Kailmad  Co 44    Iowa.    314 ,104 

.McLaren  v.  lliitchin.soii 18  Cal.  80 L'4().   n. 

McLean    v.   .Icpli.son I't!   Al)l).    X.    C.   40 S").    n. 

.Mcriicrson    v.    Weston    04    Cal.    275 51.'},    n. 

-Malone   v.   Crescent   City   Co 77   Cal.   38      240,   n. 

Mande\nlle  v.  Welch 5  WTieat.  277 44.  376 

Manny    v.    Frazicr's    Adm'r    2!>   Mo.   410 259 

Mnrquat    v.    Martiuat    12  X\  Y.  XU'i 49 

Marble   Savings   Bank   v.    Mesarvey.  .  101  Iowa  285 333 

Martyii  v.  Hind Cowp.  437 "io-!,  3:i(i 

Marsh  v.  Pike   10  Paige,  597   277 

Mason  v.  Hall .30   Ala.   590    238.   n 

Mayer  v.   Wick    15   O.   S.   548    530 

Mayes  v.  Turley   CO  Iowa.  407   <)()2.  n 

Mebane  v.  Mebane   GG  N.  C.   334 GIO,  n 

Meech  v.  Ensign 49  Conn.   191 283,   n 

:Meeker  v.  Claghorn   44  N.  Y.  349 512,  u 

Meier  v.   Lester    21  Mo.  112 555,  n 

Melcher,  as  Attorney,   v.   Kreiser.  .  .  .  21   Misc.  1,59 228,    584,  n. 

Melcher,   as  Attorney,   v.   Kreiser.  ...  2S    App.    Div.    3(12 230 

Mellen  v.  Whipple 1  (Jray,  317 23(i,  2.38,  270,  340 

Mentzer  v.  W'estern   Union   Co 03  Iowa  752 161 

Merrill  v.  Green 55    N.    Y.    270    31G 

Merrill  v.  Grinnell 30  X\  Y.  594    404,  n. 

Mescall  v.  Tully 01  Ind.  06 144,  n 

Meyer   v.    Garthwaite    02  Wis.  571 141 

Meyer  v.   Lowell   44  Mo.  328    238,  n. 

Miller  V.   Ball 64    X\    Y.    286     220 

Milliken  v.  Cary .">   How.    I'r.   L'lf. 24 

Mills  V.  La  Yerne  Co 07  Cal.  254 .385.  n.,  .301,  n. 

Minnesota   Thresher  Co.   v.   lleii)ler.  .40  ^finn.  305  .  .   .  .407.  n..  514,  n.,  515 

Mitchell  V.   St.   :Mary 148  Ind.  Ill   .584.  n. 

Mitchell   V.   Taylor 27  Ore.  877 .398.   n. 

Monuett  v.  Turpie -.  i:*.:!   Ind.   424 14.". 

Moore  v.  House 64    111.    162 252,  n. 

Moore  v.  The  Mayor  N.  Y 8   X.  Y.   110 391 

Moore  v.  Noble .-.•'.  X.  Y.  425 117 

Moorman  v.  Wood 117  Ind.  144 144,  n. 

More  V.  Massini :V2  Cal.  590 404,  n. 

Morgan  v.  Overman  Co .''>7  Cal.  .5.34 2.3S,  n. 

Morrill  v.  Lane 1.".C.  Mass.  93 239,  n. 


XXX  TABLE   OF   CASES. 

(References  are  to  pages.) 

Morse  v.  Stockman 65  Wis.  36 85,  n. 

Moss  V.  Cohen 158  N.  Y.  240 605,  n. 

Munro  v.  Dredging 84  Cal.  515 602,  n. 

Murray  v.  Harway 56  N.  Y.  337 38".J 

Musselman  v.  Gravers 47  Ind.  1 554,  n. 

Myers  v.  Hale 17  Mo.  App.  205 258 

N 

National  Bank  v.  Grand  Lodge !)8  T'.  S.  123 286,  239,  n.,  300, 

301,  306,  312,  322 

National  Bank  v.  Marietta  Railroad.  20  O.   S.  259 214 

National  Bank  v.  Root 107  Ind.  224 144,  n. 

National  Bank  v.  Sluiler 153  N.  Y.  163 606.  n. 

Nebraska  v.  Hayden 89  Fed.  Rep.  46 623 

Nelson  v.  Eaton 7  Abb.  Pr.  305 545.  n. 

Newcomb  v.  Clark 1  Den.  226 : 208 

New    England    Iron   Co.   v.    Elevated 

R.  R 91  N.  Y.  153  .  . : 398.  u. 

New    Jersey   Navigation   Co.   v.   Mer- 
chants' Bank 6  How.  344 215 

New   York     Ice   Co.   v.    Northwestern 

Ins.  Co 23  N.  Y.  3.57 48,  55 

New  York  Ins  Co.  v.  Aitken 125  N.  Y.  660 265 

New   York   Ins   Co.   v.    National   Ins. 

Co 14  N.  Y.  85 158 

New  York   Security   (,'o.   v.   Louisville 

Co 97  Fed.  Rep 226,  n. 

Nichols  V.  Gross 2(^.  O.   S.  425 496 

Nickerson  v.  Hydraulic  Co 46  Conn.  24 344 

Nicoll  V.  Burke 78  N.  Y.  580 225 

Norfolk  &  Western  R.  R.  v.  Read. .  .87   Va.   185 404.   n. 

North  V.  Turner 9  Serg.  &  Rawle.  244 410 

North  Chicago  St.  Ry.  v.  A(-kley 171  111.  100 422,  n..  423 

O 

Gates  V.  Union  Pacific  Ry 104  Mo.  514 526,  n. 

O'Donnell  v.  Syebert   13  Serg.  &  Rawle.  .54 410 

Olcott  v.  Carroll .39  N.  Y.  436 113 

Osborn  v.  McClelland 43  O.  S.  284 482.  n. 

Oliver  v.  Walsh 6. Cal.  4.56 405,  n. 

P 

Pace  v.  Pierce 49   Mo.  393 258 

Packard    v.    Brewster 59  Mo.  404 252.  n. 

Paddock  v.   Kirkham 102  N.  Y.  597 8.5,  n. 

Paducah      Lumber      Co.     v.     Paducah 

Water  Supply  Co .S9  Ky.  .340 347 


TABLE   OF   CASES.  XXXI 

(References  are  to  pages.) 

ViiiH'  V.   Becker .U    Mo.    400    200 

I'aiiic  V.  Railway  Co 45  Iowa,  iHV.) l(i."» 

I'almer  v.  Chicago  Uy 1 12  Ind.  385 144,  n. 

Pardee  v.  Treat 82  N.  Y.  385 l.'S3,  .u 

I'ardoe  v.  Iowa  Bank 100  Iowa,  345 422,  u. 

Parker  v.  Cochran U  Colo.  303 200,  n. 

I'ark(>r  v.  ruUniau  &  Co 30  App.  Div.  208 182 

I'arkhiirst  v.  Mastellar 57   Iowa,  480 105 

I'arsoiis  V.  Bedford :j  Pet.  433 28 

Parsons  v.  Freeman Auib.   116 323 

Peacock  v.  Williams 08  N.  C.  321 283,  r. 

Pearson  v.  Pearson 125  Ind.  341 144,  v. 

Peck  V.  Yorks 75  N.  Y.  421  ..  . .  .. 47!».  ii..  492,  n. 

IVople  V.  Holmes 5  Wend.  191 251 

I'('oi)le  V.  Norton 9  N.  Y.  170 555,  n. 

IVople   V.   Seneca   Conmion    Pleas.  .  .  .2  Wend.  2(54 82 

IVople  V.  Supervisors 12  Barb.  440  82 

People  V.  Syracuse  Common  ( "ouncil .  78  N.  Y.  .50 82 

Peoi)le  V.  Tioga  Common  Pleas 19  Wend.  73 401,  403.  410,  420 

IVrine  v.  Grand  Lodge 48  Minn.  82 008 

Perkins  v.  Peterson 2   Colo.  App.  242 383,  n. 

Perkins  v.   Stininiel 52  Hun,  520 009.  n. 

IVrson  V.  Warren  14  Barb.  488    009,  n. 

IVters  V.  Foster 50  Hnn,  007 614 

IVterson  v.  Stoughton  State  Bank.  .  .78  Wis.   113 147 

Phillips  V.  Gorham  17  N.  Y.  270 38.  49,  54 

I'hillips  V.  McConica 59  O.   S.   1   005.   n. 

IMiinny  v.  Warren .52   Iowa,  332   535 

Pickens  v.  South  Carolina  It.   It ,54  S.  C.  498 177 

Pickle  Marble  Co.  v.  McClay .54  Neb.  601   348.  u. 

Pierce  v.  Carey 37  Wis.  232 132 

Pixley  V.  Van  Nostern 1(;0  Ind.  34 442.  u..  4!m;.  51.5,  n. 

Piatt  V.  Iron  Exchange  Bank 83  Wis.  358 57(5 

Platter  v.  City 80  Ind.  323 144,  n. 

Po])P  V.  Porter 33  Fed.  Rep.  7 288.  n. 

Pop).  V.  Cincinnati  Ry 90  Fed.  Rep.  465 530 

Porter  v.  Woods 138  Mo.  539 298 

Potter  V.  Potter 8  N.  Y.  Civ.  Pro.  Rep.  1.50 .599 

Powell  V.  Smith 2  Watts.  126 02.  03 

Presbyterian  Society  v.   Beach  74  N.  Y.  72 554,  n. 

Protection  Ins.  Co.  v.  Wilson c,  ().  S.  55 5.55.  n. 

Pulver  V.  Harris .52  N.  Y.  73 401,  n. 

Purcell  V,  R.  R.  Co los  N.  C.  414 ITS,  179 

Puri)le  V.  Hudson  River  R.  It 4    Duer,    74    399 

Q 

Qunn  Wye  v.  Chin  Lin  Hee 123  Cal.  185 4(53.  n. 


xxxii  TABLE  OF  CASES. 

(References  are  to  pages.) 

R 

Itacer  v.  The  State 131  Ind.  393 144.  n^. 

Itagan  v.  Simpson -"   Wis.  S-'m   !-■• 

Randall  v.   Van  Vechteii   19  Johns.  GO 22-1 

Rapplege  v.  Racine  Seeder  Co "9  Iowa,  220 301 

Rauer  v.  Fay IKJ  <^al-  3^1 ^^^^  "•'  ^^1'  ^• 

Raymond  v.  Railway  Co "•"  O-  ►'5-  --"l '*? 

Redhefter  v.  Leathe l"'  ^^o-  -^1^1^-  1- ^^1'  ^'• 

Reed  V.  Lane ^)«j  lo^^-i'  ^^^ 579^610 

Reubens  v.  Joel 13  N.  Y.  488 2(,  49 

Reynolds  v.  Qnaely -'^^  K=^"-  3<^1 "^''^ 

Reynolds  y.   The   State '>!  ^"fl-  ^92 8...  n. 

41  X.  Y.  179 250,  282.  28<).  u. 


Ricard  y.   Sanderson   

Riee  y.  Sayery 22  Iowa,  470  . .  .  195,  201,  243,  599.  u. 

Rice  y.   Stone 1  Allen  560 422,  n.,  429 

Rice  y.  Yakima  Ry "i   Wash.   724   383,   n. 

Richardson   y.   Means   22  Mo.  495 90 

Riker  y.   Curtis  39  N.  Y.  Snpp.  340 383,  n. 

Ricketts  y.  Dorrell   •>">  ^^(^-  "4™ '^'-' 

Robbins  y.  Deyerill 20  Wis.  142 43(3,  585,  u. 

Roberts  y.  National  Bank 8   N.  D.   471    383,   n. 

Robinson  y.   Flint   W  How.  Pr.  240 100 

Rochester  Bank  v.  Suydam 5  How.  Pr.  210 22,  24.  2< 

Rochester  Lantern  Co.  y.  Stiles  (]o..  .135  N.  Y.  209 398 

Roe  y.  Barker 82  N.  Y.  431  280.  n. 

Rogers  y.  Gosnell 51  Mo.  400  .  .  .  238.  n..  2.51,  n.,  269.  n. 

Rohman  y.  Geiser •'.3  Neb.  474 348,  u. 

Root  y.  Wright 84  N.  Y.  72 283,  n. 

Rose  y.  Beattie 2  N.  &  M<  C.  538 105 

Ross  y.  Mather 51  N.  Y.  108 115,  175 

Roszell  y.  Roszell 105  Ind.  77 401,  n. 

„    .  ,,     ^  4.  Cfil    355  209.  !i. 

Ruiz  y.  Norton ^  '-^i.  o.>.> 

Russell  y.  Porter   3  Seld.   171    278 

S 

Sargent  y.   Morris    3  Barn.  .V:  Aid.  277 549 

St.    Louis  Ry.   y.   Thacher 13   Kan.    504 21G 

Sanderson  y.   Cevro  Gordo  Co SO  Iowa,  80 584 

Saunders  y.  Saunders 1-^4  Mass.  337 252,  n. 

Sayings  Bank  y.  Thornton 112  Cal.  2.55 283,  n. 

Sayward  y.  Dexter  &  Co 19  C.  C.  A.  176 288,  n. 

Scantlin  v.  Allison 1^  Kan.  85 ;--;-:-'^';' 

Schaefer  y.  Henkel   <..  N.  \.  o.8 -l.»,  -->'  -3- 

Scheffler  y.  Minneapolis  Ry 32  :\[inn.  12.3 5-1.  v. 

Schemerhorn   y.   Yanderheyden   1  Johns.  139 2.34,  235,  251,  360 

Schmiery.Fay 12  Kan.  184 448,  n. 

S<hoonoyer  v.  Osborne 108  Iowa  453 301    n_. 

Schroeder  y.  Central  Bank 24  W.  R.  710 3.  . 


TABI.E   OF   CASES.  xxxiii 

(References  are  to  pages.) 

Schuent'i-t  v.  Kaehkn- 2.")  Wis.  ~)'2',i 124 

Seaman  v.  White 24  Wend.  2(;() l>8,j 

Secor  V.  Lord .'J  Keys,  525 250 

Secor  V.   Pendleton   47  Hun.  281 G02,  n. 

Seward  v.  Clark (iT  Ind.  289 85,  n. 

Seymour  v.  Aultmau  &  Co —  Iowa  — 383 

Shamp  V.  .Meyer 20  Neb.  223 23J>.  ii. 

Sharp  V.  Edgar 3  Sandf .  370 ;  178 

Shelby  County  v.  Simnionds 33  Iowa,  345 .555,  n.,  598.  n. 

Sheldon  v.  Hoy 11  How.  Pr.  11   177,  (iOO 

Shepard  v.  Kaihvay  Co 77  Iowa,  58 Kio 

Sheridan  v.  The  Mayor (58  N.  Y.  30 401 

Sherman  v.  Western  Stage  Co 24  Iowa,  515 521,  ii. 

Sherry  v.  Smith 72  Wis.  330 142,  ii. 

Sherwood,  Adm'r.,  v.  Lafayette 109  Ind.  411 144,  n. 

Sibley  v.  Pine  County 31  ^fiun.  201 385,   ii. 

Silliman  v.  Tuttle 45  Barb.  171 , 212 

Sirason  v.  Brown 68  N.  Y.  355 200,  n.,  301 

vSlauson  v.  Schwabaeher 4  Wash.  783 412,  n.,  422,  n. 

Slocum  V.  Barry 34  How.  Pr.  320 554,  ii. 

Smith  V.  Plack 95  Ind.  116 239,  n.,  269,  n. 

Smith  V.  Hall 67  N.  Y.  48 440 

Smith  V.   Long 12  Abb.  N.  C.  113 461,  n. 

Smith  V.  Truslow 84  N.  Y.  6(i0 286 

Snider  v.  Adams  Express  Co 77  Mo.  523 572 

Snyder  v.  Wabash  Pty 86  Mo.  613  ..  .401,  n..  403,  n.,  404,  n. 

Society  of  Friends  v.  Haines 47  Q.  S.  423 244,  n. 

Somner  v.  Wilt l  Serg.  &  Kawle.  10 410 

Sonstiby  v.  Keeley 7  Fed.  Rep.  447 288,  n. 

Sparman  v.  Keim   .83  N.  Y.  247 416,  n. 

Spence  v.  Emerine 40  o.  S.  433 451.  n. 

Sprankle  v.  Trulove 22  Ind.  App.  577 301,  n. 

Squeir  v.  Norris 1  Lans.  282 224 

Sroufe  V.  Soto —  Ariz.  — 514,  u. 

Stai-iha  v.   Greenwood   28  ;\Iinn.  .521 230.  n. 

Starker  v.   Remy   <)4  lov.a.  330 .502 

State  V.  Hayden 80  Fed.  Rep.  46 623 

State  V.  Moore 11)  Mo.  360 .5.55,  u. 

State  V.  St.  Louis  Ry 125  Mo.  .505 283,  r. 

State  V.  Thompson 34  O.  S.  .365 85,  n. 

Steeple  v.  Downing (10  Ind.  478 4.55 

Sternberger  v.  McGovcrn .k;  X.  Y.   12 128 

Stevens  v.  Flannagan 131  ind.  122 2.30,  n. 

Stevens  v.  The  Mayor 84  N.  Y.  20(! 136,  151 

Stewart  v.  Beebe 28  Barb.  34 603.  n. 

Stilhvell  v.  Hurlbert 18  N.  Y.  374 .5.55,  n..  .5.58 

Stone  v.  Boston  R.  R 7  Gray,  5.30 401,  n. 

Stone  v.  Railroad  Co 47   Iowa,  88 l(;.-> 

Strohn  v.  Hartford  Fire  Ins.  Co.   .  .  .33  Wis.  (548 500,   n. 


XXXIV  TABLE   OF   CASES. 

(References  are  to  pages.) 

Struckmeyer  v.  Lamb <i4  Minn.  57 ol4.  d. 

Stuckey  v.  Fritsche 77  Wis.  329 452,  ii. 

Stults  V.  Brown 112  Ind.  370 144,  n. 

Sturgis  V.  Warren 11  Yt.  433 ()2.  tj3 

Sturm  V.  Atlantic  Ins.  Co f):;  X.  Y.  77 555 

Sullivan  v.  Sullivan Kil  X.  Y.  554 3G0.  37't 

Supervisors  v.  Decker 30  Wis.  624 12(»,  132,  140 

Supervisors  v.  Decker 34  Wis.  378 120 

Sweetser  v.  Silber 87  Wis.   102 142,  n. 

Swift  V.  Ellsworth 10  Ind.  205 49(5.  012 

Swift  V.  Pacific  Mail  Co 100  X.  Y.  200 550,  h. 

Ssvift  V.  Swift 40  Cal.  207 583,  n. 


Telyou   v.   Reynolds lOS  X.  Y.  558 232 

Tenney  v.    State   Bank 20  Wis.  152 142 

Thomas  v.  Bennett 50  Barb.  197 009,  n. 

Thompson  v.  Bertram 14  Iowa,  470 242 

Thompson  v.  Fargo 49  X.  Y.  188 190,  198 

'J'hompson  v.  Fargo ((3  X'.  Y.  479 550,  n. 

Thompson  v.  Thompson 4  O.  S.  333 243,  :i. 

Thompson  v.  Whitmarsh 100  X'.  Y.  35 (j03 

Thorp  v.  Keokuk  Coal  Co 48  X.  Y.  253 2.'>ci,  317,  333,  339 

Tiffin  Glass  Co.  v.  Stoehr 57  O.  S.  157 155 

Toby  V.  Oregon  Pacific  K.  K 98  Cal.  490 513,  p. 

Todd  V.  Weber 95  X.  Y.  181 3.54,  371 

Tone  V.  Shankland —  Iowa  — 383,  n. 

Toplitz  V.  King  Bridge  Co 20  Misc.  576 492,  n. 

Treat  v.  Stanton 14  Conn.  445 .311 

Trimble  v.  Strother 25  O.  S.  378 263 

Trotter  v.  Hughes 2  Ker.  74 279 

Trustees  v.  Kilbourn 74  Wis.  452 139 

Tufifree  v.  Stearns  lianchos  Company.  124  Cal.  306 472 

Tuller  v.  Arnold 98  Cal.  522 513,  u. 

Turk  V.  Ridge 41  X.  Y.  201 31(j,  332 

Turner  v.  Alexander 41  Ark.  254 (J08,  n. 

Turner  v.  Stallibrass [  1898]    I   Q.  B.  5() 1G7 

Tweddle  v.  Atkinson    1  B.  &  S.  393 239,  n.,  359,  3(55 

Tylpr  v.  Granger 48  Cal.  2.59 5.54,  n. 

U 

I'nion  Bank  v.  Roberts 45  Wis.  373 479,  n. 

Union  Rj\  Storage  Co.  v.  McDermott.  .53  Minn.  407 341,  n. 

Usher  v.  West  Jersey  R.  It 126  Pa.  200 522 

T'ttendorfFer  v.  Saegers 50  Cal.  490 0.2.  03 


TABLIC   OK    CASES.  XXXV 

( Ileferences  are  to  pages.) 

V 

Van  1  )oi(Mi  V.  lielft! 20  Mo.  455 433 

Van  Horn  v.  Dcs  Moines 03  Iowa,  448 346 

Van  Schaiek  v.  Third  Ave.  K.  K 38  N.  Y.  346 250 

Vanstrum  v.  Liljengren 37  Minn.  191 514,  u. 

N'iadero  v.  Morton 6  N.  Y.  Civ.  Pro.  Rep.  238 598 

Victorian  No.  2 26  Ore.  104 385,  n. 

Village  of  Kent  v.  Dana 100  Fed.  Rep.  56 514,  n. 

Vimont  v.  Chicago  Ry 69  Iowa,  296  .  .  .412,  n.,  420,  431,  503 

Voorhis  v.  Childs'  Ex'cr 17  N.  Y.  354 86 

Vrooman  v.  Tinner 69  N.  Y.  280 301,  306,  314, 

328.  339,  374 

W 

Wadkins  v.  Hill 10(5  Ind.  543 144,  n. 

Wager  v.  Link 150  N.  Y.  549 329 

Wainwright  v.  (Queens  County  Co.. .  .78  Hun,  146 293.  n. 

Walburn  v.  Chenanlt 43  Kan.  352 513,  n. 

Walcott  v.  Ililman 23  Misc.  4.59 513,  n. 

Walker  v.  Felt .54  Cal.  386 489 

Walker  v.  Lathrop 6  Iowa,  516 195 

Walker  v.  Mauro IS  Mo.  564 447 

Walker  v.   Steel 9  Colo.  388 451 

Walsh  V.  Allen '. 6  Colo.  App.  303 514,  n. 

Walter  v.  Bennett 16  N.  Y.  251  .   ...  101,  114,  117,  175 

Ward  V.   St.   Vincent's  Hospital 39  App.  Div.  624 179 

Waring  v.  Indemnity  Ins 45  N.  Y.  606 .555,  n. 

Warren  v.  Wilder 114  N.  Y.  20!) 242,  n. 

Waterman   v.   Chicago   Ry 61  Wis.  464 556,  n. 

Watkins   v.   Reynolds 123  N.  Y.  211 268,  269,  u. 

Vv'atkins   v.   Plummer 93  Mich.  215 514,  n. 

Weaver   v.   Trustees 28  Ind.  112 557 

Webb  &  Hepp  v.  ]Morgan  &  Co 14  Mo.  428 476 

Webber  v.  Quaw 46  Wis.  118 404,  n.,  421,  n. 

Webster  v.   Fleming 178   III.   140 252,  n. 

Weidner  v.  Rankin 2()  O.  S.  522 .520 

Weland   v.   Ilangan 70  Minn.  349 591,  r. 

Weldon   Bank   v.   Smith 86   Fed.   Rep.   ."98 294,   n. 

Wellen  v.  St.  Louis  Ry 74  Mo.  .521 403.  n. 

Welsh  v.  Rheinhardt  &  Co 21  ]Misc.  22 202 

Western  Union  Co.  v.  Reed 9i;   Ind.   195 144,  n. 

Western  Union  Co.  v.  Young 93  Ind.  118 144.  n. 

Wetmore  v.  Hegeman 88   N.   Y.   69   579 

Wetmore  v.   Porter 92  N.  Y.  76 184 

White  V.  Allott 87  Cal.  245 572,  n. 

White  v.  Drake 3  Abb.   N.  C.   133 442 

White  v.  Hunt 64  N.   C.  496 238.  n. 

Whiti^  v.   .Toy   . I.'!  N.   Y.  S3 603.   u. 


XXXVl  TABLE   OF   CASEii. 

(References  are  to  pages.) 

White  V.  Lyons 42   Cal.   279 55 

White  V.  Mt.  Pleasant  Mills 172  Mass.  402 239,   a. 

White   V.    Stanley   2!)  O.   S.  423 497 

Whitford  v.  Laidler 94  N.  Y.  145 225 

Whitman  v.  Keith IS  O.  S.  134 383 

Whitney  v.   Bird 11   Iowa,  407 190 

"Whittenton  Co.  v.  Memphis  Co 19  Fed.   Rep.  273 30 

Wichita  National  Bank  v.  Maltby. .  .53  Kan.  507 480 

Willai-d  V.  Wood 135  U.   S.  309 320,  n. 

Willard  v.  Wood KU  U.   S.  502 320,  n. 

Williams  v.   Hayes 5  How.   Pr.  470 20,  24 

Williams  v.  Kiernan 23  Hun,  3.55 599,  n. 

Williams  v.   Naftzger 103  Cal.  438 242,  n. 

Williams  v.   Norton   3  Kan.  295 479 

Williams  v.   Railroad 91   Ala.   0.35 .521,   n. 

Williamson   v.   Allison 2  East  44G :  .  117,   118,   133 

Willison  V.   Smith 52  Mo.  App.  133 492.  n.,  511 

Wilson   V.   Clark   11   Ind.   385 434 

Wilt  V.  Huffmann 46  W.  Va.  473    383,  n. 

Wing  Ho  V.  Baldwin 70  Cal.   194 463,   u. 

Wisner  v.   Fruit  Jar  Co 25  App.  Div.  362 172 

Witthaus  V.   Schack 105  N.  Y.  332 391,  n. 

Wolfe  V.  Missouri  Pacific  Ry 97  Mo.  475 550,  n. 

Woodcock  V.   Bostic 118  N.  C.  822 238,  n.,  320,  u. 

Wooden   v.  Waffle 0  Uo^'.  Pr.  145 24,  27 

Wooden  v.  Western  R.  R 126   N.   Y.    10 527 

Woodford  v.  Leavenworth 14   Ind.   311   HI 

\V'ooliscroft  V.  Norton 15  Wis.   198 445 

Worden  v.  Chicago  Ry 82  Iowa,   735 391,   a. 

Worthington,  in  re 141  N.  Y.  9 391,  i- 

Wright  V.  Hooker 10  N.  Y.  15 32,  113 

Wymore  v.  Mahaska  Connty 78  Iowa,  390 .521.   i;. 

Wynne  v.  Heck 92  N.  C.  414 51.5.  n..  .581 


Yardum    v.    Wolf    '. 33  App.   Div.   247 1~"> 

York  V.  Conde 147  N.  Y.  480 398.  m. 

Yoiinker  v.   Martin 18  Iowa.   143 448,   n. 

z 

Zabri^ie  v.   Smith 13  N.  Y.  .330  .  113,  398,  n.,  407,  413, 

415 
Ziinmor   v.   Chow 34   App.   Div.   .504 502 


CASES  AND  STATUTES 

ON  THE 

PEINCIPLES  OF  CODE  PLEADING. 


CHAPTER  I. 
ORIGIN,   NATURE,   AND  EXTENT  OF  CODE  PLEADING. 

In  its  natural  and  widest  sense  the  modern  phrase  "code  pleading  " 
denotes  any  system  of  pleading  whose  principles  have  been  reduced  to 
the  form  of  a  statute.  So  understood,  the  term  would  apply  as  well  to 
the  statittory  pleading  of  Louisiana  as  to  that  of  New  York,  to  the 
statutory  pleading  of  Germany  as  to  that  of  England.  But  popular 
usage  in  our  courts,  while  not  refusing  the  term  its  wider  meaning, 
tends  to  apply  it  to  one  kind  of  statutory  pleading  as  if  it  were  the 
only  kind.  For  the  system  to  which  American  decisions  and  text- 
books commonly  refer  as  unqualifiedly  "code  pleading  "  is  not  found 
in  every  country  or  even  in  every  state  of  the  Union  where  the  prin- 
ciples of  pleading  have  been  reduced  to  the  form  of  a  statute.  Rather, 
it  is  a  peculiar  system,  pre-eminent  in  geographical  extent. 

It  is  apparently  an  abuse  of  terms  to  speak  of  any  system  of  statu- 
tory pleading  as  if  it  were  common  to  distinct  states.  For  code  plead- 
ing, ex  vi  termini,  always  rests  definitely  upon  the  existing  enactments 
of  some  particular  .state — enactments  which  have  no  virtue  of  their  own 
beyond  the  state  line.  In  any  given  case,  the  code  pleading  of  one 
state  can  properly  enough  be  regarded  as  standing  by  itself,  a  distinct 
system  independent  of  the  code  pleading  of  every  other  state.  Never- 
theless, it  is  customary  to  speak  of  the  peculiar  form  of  statutory- 
pleading  under  consideration  as  if  it  were  one  system  possessed  in  com- 
mon by  many  states.  Standard  textbooks  have  long  treated,  not  of  the 
' '  code  pleading  of  New  York,  "  or  the  ' '  code  pleading  of  Ohio,  "  or  the 
code  pleading  of  this,  that,  or  the  other  state  or  group  of  states,  but 
simply  of  "code  pleading. "  The  same  tone  appears  time  and  again  in 
the  decisions.  And,  in  fact,  there  is  excellent  warrant  for  this  in  the 
remarkable  family  likeness  of  all  these  codes. 

"Wherever  the  ' '  code  pleading  ' '  of  our  decisions  and  textbooks  is 
found,  its  cardinal  characteristics  center  about  two  things — a  common 
origin  and  a  common  purpose.      Characteristically,  code  pleading  with 


ORIGIN,    NATURE,    AND   EXTENT   OF   CODE   PLEADING. 


US  is  that  form  of  statutory  pleading  which  (i)  has  arisen  out  of  the 
English  common  law  procedure,  and  (2)  provides  for  the  following : 
(a)  one  judicial  instrument — a  "single  form  of  action" — for  the 
protection  of  all  primary  rights,  whether  legal  or  equitable  ;  (b)  a  lim- 
ited pleading  characterized  by  plain  and  concise  statements  of  the  actual 
substantive  facts,  and  none  but  such  substantive  facts,  of  the  cause  of 
action  ;  (c)  the  bringing  in  of  new  parties,  and  the  joinder  of  different 
causes  of  action  between  the  necessary  parties,  with  a  view  to  the  com- 
plete determination  of  the  whole  controversy  ;  (d)  the  adjustment  of 
the  relief  according  to  the  substantial  rights,  pleaded  and  proven,  of 
all  the  parties  before  the  court,  and  of  each  of  them,  be  they  few  or 
many. 

With  such  characteristics  ' '  code  pleading  ' '  is  often  antagonistic  to 
common  law  pleading.  Yet  the  causes  which  gave  rise  to  code  plead- 
ing lay  in  the  common  law  itself,  and  the  materials  out  of  which  code 
pleading  is  constructed  are  those  which  had  become  available  through 
the  development  of  English  and  American  jurisprudence  in  both  legal 
and  equitable  causes.  Revolutionary  as  it  seemed  to  be,  the  direct  aim 
of  the  codes  was  not  so  much  to  destroy  both  the  root  and  the  branch 
of  the  existing  sj'stems— the  pleading  at  law  and  the  pleading  in 
equity — and  to  put  an  entirely  new  pleading  in  their  place,  as  to  reduce, 
these  venerable  and  often  conflicting  modes  of  pleading  to  one  simple, 
uniform  S3-stem,  free  from  the  faults  and  defects  which  the  experience 
of  centuries  had  revealed  in  them.  The  result  was,  indeed,  a  new 
pleading,  markedly  different  from  both  the  older  systems.  But  it  is 
plain  at  everj^  turn  that  the  new  pleading  is  built  out  of  the  old. 
Much  is  discarded,  but  rarely  is  new  material  introduced.  And 
not  only  was  code  pleading  built  out  of  the  older  systems,  it  was 
designed  for  the  same  purpose  which  the}-  had  sought  to  ser\^e — the 
administration  of  the  substantive  common  law  of  England. 

So  marked  is  their  common  origin  and  common  purpose  that  these 
different  S3\stems  of  "code  pleading,"  however  distinct  and  independ- 
ent each  of  the  other,  as  being  statutes  of  sovereign  states,  still  make 
up  a  highly  individualized  group  of  codes.  They  may  well  be  con- 
sidered together  as  constituting  a  system  of  their  own,  or  as  but  dis- 
tinct expressions  of  the  same  system. 

This  family  likeness  is  strengthened,  in  America  at  least,  by  another 
fact:  very  man}'  of  these  codes  have  been  framed  with  painstaking 
exactness  upon  the  lines  of  one  or  the  other  of  the  two  or  three  earliest 
codes,  themselves  formed  after  one  model.  The  same  general  topics, 
the  same  arrangement  of  divisions  and  subdivisions,  the  same  phrase- 
ology are  steadily  repeated  through  more  than  a  score  of  American 
codes.  The}'  are  one  in  spirit;  to  a  marked  degree  they  are  one  in  the 
letter  also.  And,  while  the  letter  of  this  system  has  not  been  so  often 
repeated  outside  the   United  vStates,  the  cardinal   characteristics  men- 


(IRIGIX,  NATURE,  AND  EXTENT  OF  CODE  PLEADING.        3 

tioned   above-  are  found  in  man}'  other  statutes  besides  those  which 
establish  the  American  codes. 

Apart  from  any  question  as  to  the  merits  of  this  type  of  pleadinj^, 
its  geographical  extent  gives  it  an  easy  pre-eminence  over  every  other 
American  and  Ivnglish  statutory  pleading,  and  over  what  is  left  of  com- 
mon law  pleading.  The  latter  was  not  so  widespread  in  its  palmiest 
days.  For  "  code  pleading  "  has  already  supplanted  it  or  usurped  its 
natural  place  in  twenty-seven  states  of  the  American  Union,  and  in 
essentials  if  not  in  the  very  letter  has  dispossessed  common  law  plead- 
ing in  England,  and  has  found  its  wa}'  into  India,  into  the  colonies  of 
Australia,  into  the  Dominion  of  Canada,  an(I"widely  elsewhere  among 
the  British  possessions.  Following  the  sway  of  the  Anglo-Saxon,  it 
has  encircled  the  earth. 

Within  the  American  Union  code  pleading  now  prevails  in  four  of 
the  Atlantic  States,  in  three  of  the  Central  States,  and  almost  exclu- 
sively in  the  West — in  Connecticut,  New  York,  North  Carolina,  and 
South  Carolina;  in  Kentucky,  Ohio,  and  Indiana;  and  in  Wisconsin, 
Minnesota,  Iowa,  Missouri,  Arkansas,  Indian  Territory,  Oklahoma, 
Kansas,  Nebraska,  South  Dakota,  North  Dakota,  Montana,  Wyoming, 
Colorado,  New  Mexico,  Arizona,  Utah,  Nevada,  Idaho,  Washington, 
Oregon,  and  California. 

The  states  named  above  make  up  what  are  commonl}^  called  the 
"code  states  ";  there  is  a  tendency  to  group  all  the  other  members  of 
the  Union  as  "common  law  states. "  But  here  a  distinction  or  two 
must  be  kept  in  mind.  In  every  one  of  the  United  States  statutory 
modifications  of  the  older  procedure  have  been  so  many  and  so  great 
that  the  system  of  common  law  pleading  no  longer  exists  anywhere 
with  us  in  its  entirety.  By  "common  law  states,"  then,  is  to  be 
understood  those  states  in  which  the  pleading  is  partly  according  to 
common  law  rules,  whether  now  existing  as  unwritten  law  or  in  the 
form  of  statutory  enactments,  and  partly  according  to  new  statutory 
requirements,  zvith  the  common  law  elemc7it  prcdomifiafi?ig.  The  term  i 
may  be  applied,  with  more  or  less  appropriateness,  to  the  states  of  | 
Maine,!  New  Hampshire.  Vermont,  Rhode  Island,  New  Jersey,  Penn- 
sylvania, Delaware,  Maryland,  Virginia,  West  Virginia,  and  Florida, 
Illinois,  and  Michigan,  and  the  District  of  Columbia. 

But  not  all  the  remaining  states  are  "common  law  states,"  even  in  ' 
this  loose  sense.     Massachusetts,  Maryland,  Tennessee,  Georgia,  Ala-  \ 
bama,   and  Mississippi  have  not  established  "code  pleading"  in  the  I 
sense   already   explained,   but  they   have   established  fairly   complete 
statutory  systems,  which,  like  "code  pleading,"  arise  out  of  the  com- 
mon law,  and  in  other  respects  are  very  near  akin  to  "code  pleading.  " 

1  Maine,  however,  is  sometimes  included  among  the  "code  states"  (So  Dillon,  Laws  and 
Juyisprudence,  26o«,  and  Phillips,  Code  Pleading,  i66«,  both  quoting  from  Mr.  David  Dudley 
Field's  paper  for  the  Columbian  Exposition ) ;  but  the  published  statutes  of  Maine  fail  to  bear 
this  out.     It  is  rather  a  common  law  state  with  statutory  modifications. 


4  ORIGIN,    NATURE,    AND   EXTENT   OF   CODE   PLEADING. 

In  a  sharply  drawn  division  between  ' '  code  states  ' '  and  ' '  common  law 
states, "  they  are  to  be  ranked  with  the  former.  For  convenience  they 
may  be  referred  to  as  quasi-code  states.  With  them  should  be  included 
the  state  of  Texas,  whose  statutory  civil  pleading,  although  not  founded 
on  common  law,  has  very  closely  approximated  the  system  of  rules 
found  in  the  "  code  states  "  generall}'. 

Another  distinction  is  to  be  noted  here.  Predominant  in  the  United 
States  and  first  established  there,  ' '  code  pleading  ' '  has  been  somewhat 
formally  designated  as  the  "American  system,"  as  if  it  were  peculiar 
to  the  United  States.  This  was  true  enough  for  a  quarter  of  a  cen- 
tury, and  the  term  is  still  a  convenient  term  in  several  ways  ;  but, 
when  used  with  respect  to  the  essentials  of  the  system  to  which  it 
refers,  it  is  now  apt  to  mislead.  "  Code  pleading,  "  in  the  sense  already 
explained,  is  no  longer  peculiar  to  the  United  States.  It  holds  an  even 
more  complete  sway  in  England,  in  Ontario,  in  Nova  Scotia,  in  Victo- 
ria, and  elsewhere  in  the  British  Empire.  In  its  essentials,  it  is  char- 
acteristically that  system  of  pleading  which  the  great  majority  of 
English-speaking  peoples  have  deliberately  adopted  within  the  last 
half  century  for  their  courts  of  record.' 

The  codes  which  wrought  this  revolutionary  change  begin  in  Amer- 
ica with  the  New  York  Code  of  Procedure  of  1848,  in  England  with 
the  Judicature  Acts  of  1873  and  1875.  The  other  codes  follow  in  rapid 
succession,  the  American  legislatures,  with  scarcely  an  exception, 
keeping  close  to  the  letter  of  the  New  York  act  and  its  earlier  amend- 
tdents,'  the  English  colonial  legislatures  copying  no  less  carefully  the 
enactments  of  the  mother  country.^ 

The  American  codes,  bearing  different  titles — "  code  of  procedure, " 
' '  code  of  civil  procedure,  "  "  code  of  practice,  "  "  practice  art,  "  "  civil 
practice  a^, "  "civil  code" — appeared  in  this  order:  the  New  York 
code  in  1848,  the  code  of  Missouri  in  1849,  that  of  California  in  1850, 
of  Kentucky  in  1 851,  of  Iowa  in  1851,  of  Minnesota  in  1851,  of  Indi- 
ana in  1852,  of  Ohio  in  1853,  of  Oregon  in  1854,  of  Washington  in  1854, 
of  Nebraska  in  1855,  of  Wisconsin  in  1856,  of  Kansas  in  1859,  of  Nevada 
in  1861,  of  Dakota  in  1862,  of  Idaho  in  1864,  of  Arizona  in  1864,  of 
Montana  in  1865,  of  North  Carolina  in  1868,  of  Arkansas  in  1868,  of 
Wyoming  in  1869,  of  South  Carolina  in  1S70,  of  Utah  in  1870,  of  Col- 
orado in  1877,  of  Connecticut  in  1879,  of  Oklahoma  in  1890,  of  Indian 
Territory  of  1890,*  of  New  Mexico  in  1897. 

1  The  foregoing  passages  are  from  Hepburn's  Historical  De-elopnent  of  Code  Pleading. 

2  At  first,  however,  there  was  considerable  hesitation  over  the  "  fusion  "  of  law  and  equity. 

3  The  subject  is  somewhat  fuily  treated  in  Hepburn's  Historical  Development  of  Code 
Pleading. 

4  By  Act  of  Congress,  May  2,  1890,  the  existing  code  of  Arkansas  was  substantially  adopted 
for  the  Indian  Territory  (20  U.  S.  Stats,  at  Large,  p.  81). 


CHAPTER  II. 

THE  ONE  FORM  OF  CIVIL  ACTION. 

SECTION   I.      THE   TERMS   OF   THE   STATUTE. 

A.    The  Leading  Origi?ial  Enactments. 

New  York  :  The  distinction  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and  suits,  heretofore  existing, 
are  abolished  ;  and  there  shall  be  in  this  State,  hereafter,  but  one  form 
of  action,  for  the  enforcement  or  protection  of  private  rights  and  the 
redress  or  prevention^  of  private  wrongs,  which  shall  be  denominated  a 
civil  action.     {Laws  of  1848,  Chap.  379,  §  62,  April  12,  1848.) 

jNIissouri  :  The  distinction  between  the  different  actions  at  law,  and 
between  actions  at  law  and  suits  in  equity,  and  the  forms  of  all  such 
actions  and  suits  heretofore  existing,  are  abolished  ;  and  there  shall  be 
in  this  State,  hereafter,  but  one  form  of  action  for  the  enforcement  or 
protection  of  private  rights,  and  the  redress  or  prevention  of  private 
wrongs,  which  shall  be  dominated  a  civil  action.  {Laws  of  1848-9,  p. 
73;  Act  of  February  2^,  1849,  §  i-) 

California  :  There  shall  be  in  this  State,  hereafter,  but  one  form  of 
action  for  the  enforcement  or  protection  of  private  rights  and  the  redress 
of  private  wrongs,  which  shall  be  denominated  a  civil  action.  {Laws 
^1849-50,  chap.  142,  Act  of  April  22,  1850,  §  i.) 

Kentucky  :  The  forms  of  all  actions  and  suits,  heretofore  existing, 
are  abolished ;  and  hereafter,  there  shall  be  but  one  form  of  action  for 
the  enforcement  or  protection  of  private  rights,  and  the  redress  or  pre- 
vention of  private  wrongs,  which  shall  be  called  a  civil  action.  {Act 
of  March  22,  1851,  Code  of  Practice  in  Civil  Cases,  Title  i,  §  i.) 

The  proceedings  in  a  civil  action  may  be  of  two  kinds,  (i)  Ordinary, 
(2)  Equitable.     {Ibid,  §  3.) 

The  plaintiff  may  prosecute  his  action  by  equitable  proceedings,  in 
all  cases  where  courts  of  chancery,  before  the  adoption  of  this  code, 
had  jurisdiction  ;  and  must  so  proceed  in  all  cases  where  such  jurisdic- 
tion was  exclusive.     {Ibid,  §  4.) 

An  error  of  the  plaintiff  as  to  the  kind  of  proceedings  adopted,  shall 
not  cause  the  abatement  or  dismissal  of  the  action,  but  merely  a  change 
into  the  proper  proceedings  by  an  amendment  in  the  pleadings  and  a 
transfer  of  the  action  to  the  proper  docket.     {Ibid,  §  6.) 

Ohio  :  The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits,  heretofore  existing,  are 

1  "  Or  prevention  "  omitted  in  1849  and  subseqnently  in  New  York. 


6  THE   ONE   FORM    OF   CIVIL   ACTION. 

abolished  ;  and  in  their  place,  there  shall  be,  hereafter,  but  one  form  of 
action,  which  shall  be  called  a  civil  action.  {Act  of  March  ii,  1853, 
Code  of  Civ.  Pro.,  g   3.) 

B.    The  Present  Terms  of  the  Statute. 

New  York  ;  There  is  only  one  form  of  civil  action.  The  distinction  between 
actions  at  law  and  suits  in  equity,  and  the  forms  of  those  actions  and  suits,  have 
been  abolished.     {Code  of  Civil  Pro.  §  3339  ) 

Missouri  :  There  shall  be  in  this  state  but  one  form  of  action  for  the  enforce- 
ment or  protection  of  private  rights,  and  the  redress  or  prevention  of  private 
wrongs,  which  shall  be  denominated  a  civil  action.     {Rev.  Stats.,  1889,  g  1989.) 

California  :  There  is  in  this  State  but  one  form  of  civil  action  for  the  en- 
forcement or  protection  of  private  rights  and  the  redress  or  prevention  of  private 
wrongs,     {Code  of  Civ.  Pro.  §  307.) 

Kentucky:  There  shall  be  but  one  form  of  action.  {Civ.  Co.  of  Prac.  §  4.) 
Actions  are  ordinary  or  equitable.  {Ibid  %  <^.)  Unless  otherwise  provided  by 
this  code  or  other  statute,  (i)  Actions  of  which  courts  of  chancery  had  jurisdic- 
tion before  the  first  day  of  August,  1851,  may  be  equitable  ;  and  actions  of  which 
such  jurisdiction  was  exclusive  must  be  equitable.  (2)  All  other  actions  must 
be  ordinary.      {Ibid  §  6.) 

An  error  of  the  plaintiff  as  to  the  form  of  action  shall  be  cause,  not  for  the 
abatement  or  dismissal  of  it,  but  merely  for  a  change  into  the  proper  proceed- 
ings by  an  amendment  of  the  pleadings  and  a  transfer  of  the  action  to  the  proper 
docket.     {Ibid,  %  8.) 

Iowa  :  All  forms  of  actions  are  abolished  ;  but  proceedings  in  a  civil  action 
may  be  of  two  kinds,  ordinary  or  equitable.     {Code  of  loiva.  1897,  §  3426.) 

The  plaintiff  may  prosecute  his  action  by  equitable  proceedings  in  all  cases 
where  courts  of  equity,  before  the  adoption  of  this  code,  had  jurisdiction,  and 
must  so  proceed  in  all  cases  where  such  jurisdiction  was  exclusive.     {Ibid,  §  3427.) 

In  all  other  cases,  unless  otherwise  provided,  the  plaintiff  must  prosecute  his 
action  by  ordinary  proceedings.     {Ibid,  %  3431.) 

An  error  of  the  plaintiff  as  to  the  kind  of  proceedings  adopted  shall  not  cause 
the  abatement  or  dismissal  of  the  actions,  but  merely  a  change  into  the  proper 
proceedings,  and  a  transfer  to  the  proper  docket.      {Ibid,  §  3432.) 

Minnesota:  The  distinction  between  actions  at  law  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits,  are  abolished  ;  and  there  shall  be  in  this 
state  but  one  form  of  action,  for  the  enforcement  or  protection  of  private 
rights,  and  the  redress  of  private  wrongs ;  which  shall  be  called  a  civil  action. 
{Stats.  1894,  §  5131.) 

Indiana  :  There  shall  be  no  distinction  in  pleading  and  practice  between 
actions  at  law  and  suits  in  equity  ;  and  there  shall  be  but  one  form  of  action 
for  the  enforcement  or  protection  of  private  rights  and  the  redress  of  private 
wrongs,  which  shall  be  denominated  a  civil  action.  {Stats.,  Rev.  of  1894, 
§  249.) 

Ohio  :  There  shall  be  but  one  form  of  action,  which  shall  be  known  as  a 
civil  action.     (Rev.  Stats.,  §  4971.) 

Oregon  :  The  distinction  heretofore  existing  between  forms  of  action  at  law 
is  abolished,  and  hereafter  there  shall  be  but  one  form  of  action  at  law  for  the 
enforcement  of  private  rights  or  the  redress  of  private  wrongs.  {Code  of  Civ. 
Pro.,  §  I,  HUrs  Annotated  Laivs  of  1892.) 


THE   TERMS    OK   THE   STATUTE.  7 

The  enforcement  or  protection  of  a  private  right,  or  the  prevention  of  or 
redress  for  an  injury  thereto,  shall  be  obtained  by  a  suit  in  equity  in  all  cases 
where  there  is  not  a  plain,  adequate,  and  complete  remedy  at  law  ;  and  may  be 
obtained  thereby  in  all  cases  where  courts  of  equity  have  been  used  to  exercise 
concurrent  jurisdiction  with  courts  of  law,  unless  otherwise  specially  provided 
in  this  chapter.     [Ibid,  4-  380.) 

Washington  ;  There  shall  be  in  this  state  hereafter  but  one  form  of  action 
for  the  enforcement  or  protection  of  private  rights  and  the  redress  of  private 
wrongs,  which  shall  be  called  a  civil  action.  {Code  of  Pro.,  §  log,  //ill's  Anno- 
tated Stats,  and  Codes,  1891.) 

Nebaraska  ;  The  distinction  between  actions  at  law  and  suits  in  equity,  and 
the  form  of  all  such  actions  and  suits  heretofore  e.visting  are  abolished  ;  and  in 
their  place  there  shall  be  hereafter  but  one  form  of  action,  which  shall  be  called 
a  civil  action.      {Code  of  Civ.  Pro.,  Comfiled  Stats.,  1897,  §  5592.) 

Wisconsin  :  The  distinction  between  actions  at  law,  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits,  have  been  abolished,  and  there  is  in  this 
state  but  one  form  of  action  for  the  enforcement  or  protection  of  private  rights, 
and  the  redress  or  prevention  of  private  wrongs,  which  is  denominated  a  civil 
action.     {Stats,  of  1898,  §  2600.) 

Kansas:  As  in  Ohio  originally.  {Code  Civ.  Pro.,  §  6,  Kan.  Gen.  Stats., 
1897-) 

Nevada  :  There  shall  be  in  this  state  but  one  form  of  civil  action  for  the 
enforcement  or  protection  of  private  rights,  and  the  redress  or  prevention  of 
private  wrongs.     {Code  of  Civil  Pro.,  Gen.  Stats.,  1885,  §  3023.) 

North  Dakota  :  The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits  heretofore  existing  are  abolished  ; 
and  there  shall  be  in  this  state  hereafter  but  one  form  of  action  for  the  enforce- 
ment or  protection  of  private  rights  and  the  redress  of  private  wrongs,  which 
shall   be   denominated  a  civil  action.      {Code  of  Civ.  Pro.,  Rev.  Codes,  1895,  § 

South  Dakota:  As  in  N^orth  Dakota.  {Code  of  Civ.  Pro.,  S.  Dak.,  .An)io- 
tated  Stats.,  1899,  §  6030.) 

Idaho  :  There  is  in  this  territory  but  one  form  of  civil  action  for  the  enforce- 
ment or  protection  of  private  rights  and  the  redress  or  prevention  of  private 
wrongs  ;  Provided,  That  in  all  matters  not  regulated  by  this  code,  in  which 
there  is  any  conflict  or  variance  between  the  rules  of  equity  jurisprudence  and 
the  rules  of  the  common  law,  with  reference  to  the  same  matter,  the  rules  of 
equity  shall  prevail.      {Rev.  Stats. ,  1887,  §  4020. ) 

Montana  :  There  is  in  this  state  but  one  form  of  civil  action  for  the  enforce- 
ment or  protection  of  private  rights  and  the  redress  or  prevention  of  private 
wrongs.      {Code  of  Civ.  Pro.,  %  460,  Montana  Codes,  1895.) 

Arizona  :  The  complaint  shall  set  forth  clearly  the  names  of  the  parties  and 
their  residence,  if  known,  with  a  full  and  clear  statement  of  the  cause  of  action, 
without  any  distinction  between  suits  at  law  and  in  equity.  {Rei'ised  Stats., 
1887,  §  668.) 

North  Carolina  :  The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits,  heretofore  existing,  are  abolished, 
and  there  shall  be  hereafter  but  one  form  of  action  for  the  enforcement  or  pro- 
tection of  private  rights,  and  the  redress  of  private  wrongs,  which  shall  be 
denominated  a  civil  action.     (Code,   1883,  §  133.) 


8  THE    ONE    FORM    OF   CIVIL   ACTION. 

South  Carolina  :  There  shall  be  in  this  state  but  one  form  of  action  for  the 
enforcement  or  protection  of  private  rights,  and  the  redress  of  private  wrongs, 
which  shall  be  denominated  a  civil  action.      {Rev.  Stats.,  1893,  §  89.) 

Arkansas  :  The  forms  of  all  actions  and  suits  heretofore  existing  are  abol- 
ished. {Digest  of  Stats.,  1894,  §  5604.)  There  shall  be  but  one  form  of  action 
for  the  enforcement  or  protection  of  private  rights,  and  the  redress  or  preven- 
tion of  private  wrongs,  which  shall  be  called  a  civil  action.      {Ibid,  §  5605.) 

The  proceedings  in  a  civil  action  may  be  of  two  kinds,  first,  at  law,  second, 
in  equity.      {Ibid,  ^  5607.) 

The  plaintiff  may  prosecute  his  action  by  equitable  proceedings  in  all  cases 
where  courts  of  chancery,  before  the  adoption  of  this  code,  had  jurisdiction,  and 
must  so  proceed  in  all  cases  where  such  jurisdiction  was  exclusive.  {Ibid,  § 
5608.) 

In  all  other  cases  the  plaintiff  must  prosecute  his  action  by  proceedings  at 
law.     (Ibid,  §  5609.) 

An  error  of  the  plaintiff  as  to  the  kind  of  proceedings  adopted,  shall  not 
cause  the  abatement  or  dismissal  of  the  action,  but  merely  a  change  into  the 
proper  proceedings  by  an  amendment  in  the  pleadings  and  a  transfer  of  the 
action  to  the  proper  docket.     {Ibid,  §  5615.) 

Wyoming:    As  in  Ohio  originally.     {Rev.  Stats,  of  Wyomhig,  1887,  §  2360.) 

Utah:  As  nozv  in  California.     {Rev.  Stats,  of  Utah,  1898,  §  2852.) 

Colorado  :  The  distinction  between  actions  at  law  and  suits  in  equity,  and 
the  distinct  forms  of  actions,  and  suits  heretofore  existing,  are  abolished,  and 
there  shall  be  in  this  state  but  one  form  of  civil  action  for  the  enforcement  or 
protection  of  private  rights  and  the  redress  or  prevention  of  private  wrongs, 
which  shall  be  the  same  at  law  and  in  equity,  and  which  shall  be  denominated  a 
civil  action,  and  which  shall  be  prosecuted  and  defended  as  prescribed  in  this 
act.     {LaTvs  of  1887,  p.  97.) 

Connecticut:  There  shall  be  but  one  form  of  civil  action.  .  .  .  {Gen.  Stats., 
1888  §  872.)  All  courts,  which  are  vested  with  jurisdiction  both  at  law  and  in 
equity,  may  hereafter,  to  the  full  extent  of  their  respective  jurisdictions,  admin- 
ister legal  and  equitable  rights,  and  apply  legal  and  equitable  remedies,  in  favor 
of  either  party,  in  one  and  the  same  suit,  so  that  legal  and  equitable  rights  of 
the  parties  may  be  enforced  and  protected  in  one  action:  provided,  that 
wherever  there  is  any  variance  between  the  rules  of  equity  and  the  rules  of 
the  common  law,  in  reference  to  the  same  matter,  the  rules  of  equity  shall  pre- 
vail {Ibid,  §  877). 

Oklahoma:  The  distinction  between  actions  at  law  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits,  heretofore  existing,  are  abolished;  and  in 
their  place  there  shall  be,  hereafter,  but  one  form  of  action,  which  shall  be 
called  a  civil  action.     {Stats.,  1863,  §  3882.) 

New  Mexico:  There  shall  be  in  the  territory  but  one  form  of  action  for  the 
enforcement  or  protection  of  private  rights,  and  the  redress  or  prevention  of 
private  wrongs,  which  shall  be  denominated  a  civil  action.  {Compiled  Laivs, 
1897,  §  2685,  Sub.  Sect.  I. 


TlDv    Ol'ICKATION    OK   THK   STATUTE. 


SECTION    II.    THE   OPERATION    OF   THE   vSTATUTE. 

A  Chaj-ach-rof  the  Proposed  Change,  in  General. 

Sir  Henry  ^Maine  :  The  primary  distinction  between  the  early  and 
rude,  and  the  modern  and  refined,  classifications  of  le<]^al  rules,  is  that 
the  Rules  relating  to  Actions,  to  pleading  and  procedure,  fall  into  a 
subordinate  place  and  become,  as  Bentham  called  them,  Adjective  law. 
So  far  as  this  the  Roman  Institutional  writers  had  advanced,  since 
they  put  the  Law  of  Actions  into  the  third  and  last  compartment  of 
their  sj'stem.  Nobody  should  know  l)etter  than  an  Englishman  that 
this  is  not  an  arrangement  which  easily  and  spontaneously  suggests 
itself  to  the  mind.  jfSo  great  is  the  ascendency  of  the  Law  of  Actions 
in  the  infancy  of  Courts  of  Justice,  that  substantive  law  has  at  first  the 
look  of  being  gradually  secreted  in  the  interstices  of  procedure ;  and 
the  early  lawyer  can  only  see  the  law  through  the  envelope  of  its  tech- 
nical forms.     {Early  Law  and  Custom,  p.  389.) 

POLL,ocK  and  Maitland  :  That  characteristic  mark  of  ancient  bod- 
ies of  law,  the  prominent  place  given  to  what  we  sometimes  speak  of 
as  "  adjective  law,  "  the  apparent  subordination  of  rights  to  remedies, 
is  particularly  noticeable  in  ou''  own  case,  and  endures  until  modern 
times  ;  and  naturally,  for  our  common  law  is  the  law  of  courts  which 
gradually  acquire  their  jurisdiction  by  the  development  and  interpreta- 
tion of  procedural  formulas 

We  have  yet  to  speak  of  the  most  distinctive!}'  English  trait  of  our 
medieval  law,  its  '' formulary  §3: steru  "  of  actions.  We  call  it  distinct- 
ively English  ;  but  it  is  also  in  a  certain  sense  very  Roman.  While 
the  other  nations  of  Western  Europe  were  beginning  to  adopt  as  their 
own  the  ulti^uate  results  of  Roman  legal  historj-,  England  was  un- 
consciously reproducing  that  history ;  it  was  developing  a  formulary 
system  which  in  the  ages  that  were  coming  would  be  the  strongest 
bulwark  against  Romanism  and  sever  our  English  law  from  all  her 
sisters.  The  phenomenon  that  is  before  us  can  not  be  traced  to  any 
exceptional  formalism  in  the  procedure  which  prevailed  in  the  England 
of  the  eleventh  century.  All  ancient  procedure  is  formal  enough,  and 
in  all  probability  neither  the  victors  nor  the  vanquished  on  the  field  at 
Hastings  knew  any  one  legal  formula  or  legal  formality  that  was  not 
well  known  throughout  manj'  lands.  No,  the  English  peculiarity  is 
this,  that  in  the  middle  of  the  twelfth  century  the  old,  oral  and  tradi- 
tional formalism  is  in  part  supplanted  and  in  part  reinforced  by  a  new, 
written  and  authoritative  formalism,  for  the  like  of  which  we  shall 
look  in  vain  elsewhere,  unless  we  go  back  to  a  remote  stage  of  Roman 
history.  Our  legis  actioyics  give  waj^  to  a  formulary  system.  Our  law- 
passes  under  the  dominion  of  a  system  of  writs  which  flow  from  the 
royal  chancer^' 


10  THE    ONE    FORM   OF   CIVIL   ACTION. 

Our  forms  of  action  are  not  mere  rubrics  nor  dead  categories  ;  they 
are  not  the  outcome  of  a  classificatory  process  that  has  been  applied  to 
pre-existing  materials.  They  are  institutes  of  the  law  ;  they  are — we 
say  it  without  scruple — living  things.  Each  of  them  lives  its  own  life, 
has  its  own  adventures,  enjoys  a  longer  or  shorter  da}^  of  vigour,  use- 
fulness and  popularity,  and  then  sinks  perhaps  into  a  decrepit  and 
friendless  old  age.  A  few  are  still-born,  some  are  sterile,  others  live  to 
see  their  children  and  children's  children  in  high  places.     The  struggle 

for  life  is  keen  among  them  and  only  the  fittest  survive 

The  last  years  of  Henry  III.'s  day  we  may  regard  as  the  golden  age 
of  the  forms.  We  mean  that  this  was  the  time  in  which  the  number 
of  forms  which  were  living  and  thriving  was  at  its  maximum.  Very 
few  of  the  writs  that  had  as  yet  been  invented  had  become  obsolete, 
and,  on  the  other  hand,  the  common  law's  power  of  producing  new 
forms  was  almost  exhausted.  Bracton  can  still  say.  Tot  erimt  formulae 
brevhim  quot  sunt  genera  actiomim.  A  little  later  we  shall  have  to  take 
the  tale  of  writs  as  the  fixed  quantitj^  and  our  maxim  will  be  Tot  erunt 
genera  actionum  quot  sunt  formulae  breviuni.  Onlj-  some  slight  power 
of  varying  the  ancient  formulas  will  be  conceded  to  the  chancellor  ;  all 
that  goes  beyond  this  must  be  done  by  statutes,  and,  when  Edward  I. 
is  dead,  statutes  will  do  little  for  our  ordinary  private  law.  The  sub- 
sequent development  of  forms  will  consist  almost  entirely  of  modifica- 
tions of  a  single  action,  namely.  Trespass,  until  at  length  it  and  its 
progeny — Ejectment,  Case,  Assumpsit,  Trover, — will  have  ousted  nearly 
all  the  older  actions.  This  process,  if  regarded  from  one  point  of  view, 
represents  a  vigorous,  though  contorted,  growth  of  our  substantive 
law  ;  but  it  is  the  decline  and  fall  of  our  formulary  system,  for  writs 
are  being  made  to  do  work  for  which  they  were  not  originally  intended, 
and  that  work  they  can  only  do  by  means  of  fiction,  {i  Hist.  Eng. 
Law,  208,  2  Id.  556,  559,  562.) 

Sir  Frederick  Pollock  :  Redress  for  manifest  wrong  appears  to 
us  a  matter  of  course,  and  we  work  out  legal  problems  in  full  assur- 
ance that  the  solution,  when  finally  arrived  at,  will  be  acted  upon 
without  difficulty.  There  were  times  when  the  problem  was  whether 
and  by  what  means  right  could  be  done  at  all.  Our  modern  maxim 
"  No  right  without  a  remedy  "  assumes  the  benevolent  and  irresistible 
power  of  the  modern  law-giver.  Under  early  forms  of  law  "no  remedy 
no  right,  "  would  be  nearer  the  truth  :  a  man  who  could  not  fit  his  case 
exactly  to  an  appropriate  remedy  among  a  strictly  limited  number  of 
formulas  had  practically  no  right. 

The  expansion  of  remedial  justice,  the  perfection  of  executive  method, 
are  no  less  important  in  the  history  of  law  than  the  development  of  posi- 
tive rules.  What  is  more,  the  form  in  which  positive  rules  are  declared, 
the  directions  in  which  definition  is  attempted  or  left  alone,  and  the 
extent  to  which  it  is  carried  in  particular  branches  of  the  law,  depend 


THE  OPERATION  OF  THE  STATUTE.  11 

largely  on  the  procedure  by  which   the  rules  are  to  be  applied.     (li 
Haj'v.  Laiv  Rcz'.,  1S98,  424-5.) 

Lord  R.wmoxd  :  We  must  keep  up  the  boundaries  of  actions,  other- 
wise we  shall  introduce  the  utmost  confusion:  if  the  act  in  the  first 
instance  be  unlawful,  trespass  will  lie;  but  if  the  act  is  prima  facie 
lawful  (as  it  was  in  this  case)  and  the  prejudice  to  another  is  not  imme- 
diate, but  consequential,  it  must  be  an  action  upon  the  case,  and  this  / 
is  the  distinction.     {RLynolds  v.  Clarke,  1725,  i  Sir.  634,  635.) 

Van  Ness,  J.  :  It  is  of  importance  that  the  boundaries  between  the 
different  actions  should  be  preserved,  particularly  between  the  action  of 
trespass  and  case.  In  the  case  of  Sevignac  v.  Rootiie  (6  Term  Rep.  125), 
the  judgment  was  arrested,  after  a  trial  and  verdict  for  the  plaintiff, 
because  it  appeared  from  the  declaration  that  the  action  ought  to  have 
been  trespass  and  not  case.    (  Vail  v.  Lewis,  1809,  4  Johns. ,  N.  Y.  450,  458.) 

Woods,  C.  J.  :  The  various  forms  of  action  have  always  been  regarded 
as  substantial  and  material.  A  uniform  practice  has  treated  them  as 
being  so.     {Little  v.  Morgan,  1855,  31  N.  H.  499,  500.) 

Samson  Mason:  I  do  not  wish  this  commission,^  when  appointed,  to 
feel  compelled  to  abolish  all  of  the  old  forms.  I  do  not  wish  to  see  all 
distinction  between  law  and  chancery  broken  down.  By  such  a  course 
you  would  have  all  things  legal  so  mixed  and  commingled  that  no 
lawyer  could  tell  where  he  was.  The  youngest  member  of  the  bar 
would  have  enough  to  do  to  learn  all  of  your  forms. 

The  old  land-marks  are  obliterated — the  mile-stones  removed — the 
"signs"  have  been  knocked  down  in  a  riot — all  is  confusion,  and 
everything  is  confused.  Call  upon  the  oldest  and  ablest  lawyer  and  he 
can  not  help  you.  Three-fourths  of  the  law  libraries  may  as  well  be 
thrown  out  upon  the  common.  The  books  upon  evidence  are  useless, 
because  those  books  are  mostly  taken  up  with  the  forms  of  actions. 
Everything  is  changed.  The  costly  lamp  of  experience  no  longer 
lights  up  our  pathway.  We  are  out  upon  an  unknown  sea  of  experi- 
ment, without  chart  or  compass,  (i  Ohio  Debates,  577,  Constitutional 
Convention,  1850.) 

Mr.  Justice  Selden  :  In  that  stage  of  transition  through  which 
the  forms  and  modes  of  judicial  proceedings  are  now  passing  in  this 
state,  there  is  nothing  which  occasions  more  just  anxiety  than  the 
settlement  of  those  rules  and  principles  which  are  hereafter  to  govern 
parties  in  making  their  respective  allegations.  The  science  of  legal 
pleading  is  broken  up.  Its  foundations  are  now  to  be  relaid,  if  there 
is  any  one  who  can  meet  the  responsibility  of  acting  judiciously  upon 
the  subject  with  unshaken  nerve.     I   am  not  the  man.     It  required 

1  The  commission  proposed  in,  and  afterward  appointed  under,  Article  xiv.  of  the  Ohio 
Constitution  of  1S51,  to  "revise,  reform,  simplify,  and  abridge  the  practice,  pleadings, 
forms,  and  proceedings  of  the  courts  of  record  of  this  state,  and,  as  far  as  practicable  and 
expedient,  to  provide  for  the  abolition  of  the  distinct  forms  of  action  at  law,  now  in  use, 
and  for  the  administration  of  justice  by  a  uniform  mode  of  proceeding,  without  reference 
to  any  distinction  between  law  and  equity."' 


12  THE   ONE   FORM    OF   CIVIL   ACTION. 

great  boldness  to  tear  down  this  science  ;  it  requires  almost  equal  cour- 
age to  build  up  another  in  its  place.  But  let  each  one  whose  duty  it 
may  become  to  aid  in  the  erection  of  the  new  edifice,  lay  his  block  ;  and 
if  found  not  to  fit,  let  more  skillful  masons  remove  it  and  fill  the 
vacancy  with  another.  {Wooden  v.  Waffle,  185 1,  6  How.  Pr.,  N.  Y., 
145,  148.) 

Mr.  Justice  Grier  :  This  system  [of  common  law  pleading],  ma- 
tured by  the  wisdom  of  ages,  founded  on  principles  of  truth  and  sound 
reason,  has  been  ruthlessly  abolished  in  many  of  our  states,  who  have 
rashly  substituted  in  its  place  the  suggestions  of  sciolists,  who  invent 
new  codes  and  systems  of  pleadings  to  order.     But  this  attempt  to  abol- 

^  \  ish  all  species,  and  establish  a  single  genus,  is  found  to  be  beyond  the 
power  of  legislative  omnipotence.  They  can  not  compel  the  human 
mind  not  to  distinguish  between  things  that  differ.  The  distinction 
between  the  different  forms  of  actions  for  different  wrongs,  requiring  dif- 
ferent remedies,  lies  in  the  nature  of  things  ;  it  is  absolutely  insepara- 
ble from  the  correct  administration  of  justice  in  common-law  courts. 
{McFaiil  V.  Ramsey,  1857,  20  How.  523,  525.) 

New  York  Commissioners  on  Practice  and  Pleadings  :  Per- 
sonal actions,  as  they  existed  at  common  law,  and  as  they  are  still 
retained  in  this  state,  are  divided  into  actions  ex  contractu  and  ex  delicto. 
These  again  are  subdivided,  the  former  into  actions  of  account,  assump- 
sit, covenant,  debt,  annuit}-,  and  scire  facias ;  and  the  latter  into  tres- 

'  pass,  trespass  on  the  case,  and  replevin Within  some  one  of 

these  forms  of  action,  every  injury  to  personal  rights,  which  is  the 
subject  of  legal  redress,  must  be  brought ;  and  the  failure  to  select  the 
one  which  is  strictly  appropriate,  is  as  fatal  to  the  rights  of  the  party, 
as  his  failure  to  sustain  the  merits  upon  which  his  claim  to  redress  is 
founded.  There  is  no  branch  of  legal  science  upon  which  so  much 
curious,  and  we  may  be  permitted  to  add,  unnecessary  learning  has 
been  expended,  as  in  the  attempt  to  define  the  precise  boundaries  which 
distinguish  these  various  forms  of  action.  {Report  of  February  29,  1848, 
pp.  78,  81.) 

Ohio  Commissioners  on  Practice  and  Pleadings  :  We  say  it  is 

\  , practicable  to  abolish  the  distinctions  between  actions  at  law.'   We 

know  that  very  many  of  them  have  passed  away  by  mere  neglect,  and 
some  of  the  few  we  have  retained,  are  now  languishing  in  obscurity 
and  oblivion.  Our  chancery  practice  owes  its  origin  in  part,  to  this 
defect  in  the  law  practice,  and  has,  long  since,  fully  illustrated  the 
proposition,  that  one  form  of  action  will  answer  for  every  case.  The 
simple  petition  has  served  for  all  the  cases  cognizable  in  the  courts  of 
chancery,  and  they  are  quite  as  complex  and  various,  as  those  that 
must  be  brought  in  the  courts  of  law. 

Is  it  expedient  to  abolish  the  distinctions  between  actions  at  law  ? 
There  are  in  Ohio,  say  ten  actions  for  law  cases,   and  but  one  for 
chancery  cases.     These  ten  actions  are  different,  each  from  every  other 


THE    OPERATION    OF   THE   STATUTE.  13 

one,  and  each  one  has  been  framed  for  a  particular  purpose.  Where  claims 
of  one  kind  are  used,  the  action  must  be  assumpsit ;  for  claims  of  another 
kind,  the  action  must  be  covenant ;  of  another,  trespass ;  of  another, 
trespass  on  the  case,  and  so  throughout. 

For  every  class  of  claims  there  is  an  appropriate  action.  If  a  party 
having  a  claim,  sue  upon  it  and  mistake  the  appropriate  action,  the 
mistake  is  fatal  to  the  suit.  "  In  some  cases,  there  is  only  one  action, 
by  which  the  plaintiff  can  succeed.  There  is  one  right  action  and 
eight  or  nine  wrong  ones.  In  other  cases  there  are  two  or  more 
actions,  either  of  which  will  enable  him  to  recover  ;  but  generally  some 
one  is  more  appropriate  than  any  other,  and  will  afford  the  means  of 
taking  some  advantage.  If  the  wrong  action  be  brought,  as  we  have 
before  said,  the  error  is  fatal.  The  plaintiff  must  go  out  of  court." 
He  may  have  served  his  adversary  in  due  time  ;  he  may  have  advised 
him  fully  of  the  nature  of  his  claim  ;  he  may  have  proceeded  openly 
and  fairly  ;  but  this  will  not  be  considered,  if  the  action  be  a  wrong 
one,  as  trespass,  when  it  should  have  been  trespass  on  the  case.  He 
must  pay  the  costs,  and  go  out  of  court.  If  he  choose,  he  may  begin 
again  ;  but  he  must  be  careful  to  adopt  the  right  action,  for  no  other 
will  bring  his  case  into  court. 

It  is  often  very  difficult  to  determine  the  right  action.  The  client  is,  of 
course,  entirely  ignorant  about  it,  and  good  lawyers  are  not  seldom  per 
plexed  in  making  the  selection.  Time  and  money  have  been  wasted, 
and  much  injustice  has  been  done  by  the  application  of  this  rule.  The 
cases  where  parties  have  been  turned  out  of  court  for  such  mistakes  are 
numberless,  and  occupy  a  large  space  in  the  volumes  of  reports.  This 
evil  may  be  remedied  in  part  by  statutes  of  amendments,  and  probably 
in  other  ways.  It  has  been  long  felt  and  acknowledged,  and  we  are 
aware  of  the  efforts,  that  have  been  made  in  our  own  state,  to  obviate 
it.  We  have  now  a  statute,  Ohio  Laws,  vol.  42,  p.  72,  doing  away  in 
some  degree,  with  the  embarrassing  differences  between  trespass  and 
trespass  on  the  case.  This  statute  abolishes,  in  part,  the  distinction 
between  two  leading  actions.  It  is  the  beginning  of  the  work  we  pro- 
pose to  finish.  Nothing  short  of  what  we  propose,  will  entirely  remoye 
the  evil,  and  we  can  see  no  reason  for  contenting  ourselves  with  a  par- 
tial, rather  than  a  complete  remedy.     {Report  of  January  15,  1853,  pp. 

4,  5-) 

PoMEROY.  First  in  importance,  underlying  the  whole  system,  and 
from  which  all  others  flow  as  natural  consequences,  is  the  abolition  of 
the  distinction  between  actions  at  laxv  and  suits  in  equity.  The  new  pro- 
'  cedure  is  built  upon  this  fact  as  its  very  corner-stone  ;  every  other  char- 
acteristic feature  of  the  civil  action  results  from  it  as  a  necessary  corol- 
lary. The  interpretation  given  to  this  one  legislative  enactment  by 
the  courts  of  any  state  must  determine  the  nature  of  the  system  which 
is  created  therein,  whether  it  shall  compl}-  with  or  disregard  the  intent 


14  THE    ONE    FORM    OF   CIVIL   ACTION. 

of  the  law-makers,  whether  it  shall  accomplish  or  defeat  the  objects  of 
the  reform.     {Code  Remedies,  §  35.) 

Odgers  :  The  system  of  pleading  introduced  by  the  Judicature  Acts 
is  in  theory  the  best  and  wisest,  and  indeed  the  only  sensible,  system 
of  pleading  in  civil  actions.  Each  party  in  turn  is  required  to  state 
the  material  facts  on  which  he  relies  ;  he  must  also  deal  specifically 
with  the  facts  alleged  by  his  opponent,  admitting  or  denying  each  of 
them  in  detail ;  and  thus  the  matters  really  in  dispute  are  speedily 
ascertained  and  defined 

Forms  of  action  are  in  fact  abolished  :  it  is  now  no  longer  necessary 
to  state  on  the  pleadings  whether  the  plaintiff  is  suing  in  trespass  or  on 
the  case,  in  detmiie  or  in  trover.  This  is  a  most  important  and  most 
valuable  alteration.  Formerly,  everything  turned  on  the  form  of  action 
in  which  the  plaintiff  elected  to  sue.  If  he  sued  on  a  money  count 
and  it  turned  out  that  there  was  a  special  contract,  he  was  non-suited, 
and  had  to  pay  the  costs  of  the  first  action  before  he  could  bring  an- 
other on  the  special  contract. ^  Again,  if  he  sued  in  trespass  and  tres- 
pass did  not  lie,  the  plaintiff  was  non-suited,  although  trover  or  detinue 
would  lie.  In  all  the  old  reports,  the  form  of  action  is  usually  stated 
first  in  capitals.  And  the  court  never  decided  that  no  action  lay  on 
such  a  set  of  facts  ;  but  only  that  the  action  did  not  lie  in  that  form. 
There  were  seven  different  forms  of  personal  actions :  debt,  covenant, 
assumpsit,  detinue,  trespass,  trespass  on  the  case,  and  replevin  ;  there 
I  were  three  real  actions  :  dower,  writ  of  right  of  dower,  and  quare  im- 
Ipedit ;  and  one  7nixed  action  :  ejectment.  And  in  some  cases,  it  was 
lonly  by  a  costly  process  of  elimination  that  a  plaintiff  could  ascertain 
for  certain  what  his  proper  remedy  was. 

This  strictness  had  undoubted  advantages.  It  taught  barristers  to  be 
precise.  And  to  this  day  it  affords  one  of  the  best  means  of  testing  a 
point  of  law.  Ask  a  lawyer  of  the  old  school  whether  an  action  would 
lie,  if  one  guest  at  a  shooting  party  shot  another  by  accident  through 
the  hedge,  there  being  no  negligence  on  the  part  of  either,  and  he  will 
approach  the  question  by  asking  himself,  would  trespass  lie  ?  or  must 
the  injured  man  sue  in  case?  But  it  was  clearly  bad  for  the  suitors, 
who  deserve  some  consideration,  and  it  has  accordingly  been  abolished. 
Each  party  now  states  the  facts  on  which  he  relies  ;  and  the  Court  will 
declare  the  law  arising  upon  the  facts  pleaded.  {Principles  of  Pleading 
\jmder  (he  English  Judicature  Acts']  pp.  vii.,  150.) 

1  See  White  t.  The  Great  Western  Railway  Co.  (1857),  2  C.  B.,  N.  S.  7. 


GETTY    V.    HUDSON    RIVER    RAILROAD    COMPAXY.  15      ^V^     ^ 

^   j>     X^ 

B.  Effect  of  the  Statute  in  Adjective  Law. 

I.    THE  ONE  F0R:\I  OF  ACTION    IN    THE   STEAD  OP  ACTIONS  AT   LAW  AI^D 
THE  SUIT  IN  EQUITY. 

GETTY  :•.  THE  HUDSON  RIVER  RAILROAD  COMPANY.  ^' ^ 

Supreme  Court  of  New  York,  Special  Term,  November,   185  i. 

[6  How.  Pr.  269.] 

This  was  a  motion  to  set  aside  an  amended  complaint.  The  facts 
sufficiently  appear  in  the  opinion  of  the  court. 

Monell,  for  defendant. 

Genet,  for  plaintiff. 

Parker,  Justice. — The  defendant  seeks  to  set  aside  the  amended 
complaint  on  the  ground  that  it  is  for  a  cause  of  action  different  from 
that  set  forth  in  the  original  complaint,  and  therefore  irregular. 

The  original  complaint  alleged  the  construction  of  a  railroad  across 
a  bay  between  the  plaintiff 's  farm  and  the  Hudson  River,  and  claimed 
damages  for  thus  obstructing  the  navigation  between  the  farm  and  the 
river.  The  amended  complaint  not  only  claims  such  damages  for  the 
injury  alreadj'  suffered  by  such  obstruction,  but  also  seeks  indemnity 
for  the  future,  by  praying  that  the  defendants  be  adjudged  and  enjoined 
to  construct  such  a  bridge  as  is  required  by  the  fifteenth  section  of  their 
charter,  so  as  to  admit  of  the  passage  of  plaintiff 's  boat  and  vessels 
between  his  farm  and  the  river. 

The  original  complaint  claimed  only  legal  relief.     The  amended  com-    1 
plaint  claims  relief  both  legal  and  equitable  ;  and  it  is  here  contended 
b)^  the  defendant's  counsel  that  they  can  not  both  be  united  in  the  same 
action. 

The  facts  set  forth  in  both  the  complaint  and  the  amended  complaint 
are  substantially  the  same.  It  is  only  in  the  relief  prayed  that  they 
differ. 

We  have  certainly  made  but  little  progress  in  the  reform  that  has 
been  attempted,  if  law  and  equity  can  now  only  be  administered  in 
separate  actions.  If  such  is  held  to  be  the  present  rule  of  practice,  the 
very  object  of  having  law  and  equity  administered  in  the  same  tribunal 
and  in  the  same  forms  of  proceeding  will  be  defeated.  It  was  formerly 
considered  a  great  evil  that  in  a  suit  at  law  the  plaintiflf  could  be  turned 
out  of  court,  on  the  ground  that  his  relief  was  in  chancer^' ;  and  that 
where  a  bill  was  filed  in  the  Court  of  Chancery,  it  might  be  dismissed, 
on  the  ground  that  the  complaina-nt  had  an  ample  remed}'  at  law.  The 
evil  is  still  just  as  great  as  it  was  formerly,  if  a  party  can  have  only 


16  EFFECT   IN   ADJECTIVE   LAW. 

legal  or  equitable  relief  in  the  same  action.  In  such  case,  if  he  com- 
mences his  action  asking  for  equitable  relief,  as  for  instance  a  specific 
performance,  and  it  turns  out  that  he  is  not  entitled  to  it,  but  only  to 
legal  relief,  by  way  of  damages,  he  might  perhaps,  if  such  strictness 
is  to  govern,  be  put  to  a  new  action  to  obtain  redress.  This  certainly 
ought  not  to  be  ;  and  such  a  strictness  is  hostile  to  the  whole  spirit  of 
the  change  that  has  been  made.  In  trying  such  a  cause  at  the  circuit, 
I  should  most  certainly  allow  whatever  amendment  in  the  pleadings 
was  necessary  to  give  the  party  redress.  If  the  plaintiff  had  asked  for 
equitable  relief,  and  it  turned  out  that  he  was  entitled  to  legal  relief 
only,  I  should  permit  him  to  take  it  in  that  form.  And  if  he  had 
asked  for  legal  relief  only,  when  he  was  entitled  to  both  legal  and 
equitable  relief,  I  should  allow  the  proper  amendment  to  administer 
complete  justice  in  the  case.  The  power  to  amend,  authorized  by  the 
Code,  is  ample  for  such  purpose.  Now  the  last  case  of  amendment  I 
have  mentioned  as  permissible  at  the  circuit,  is  precisely  what  is 
claimed  in  this  case,  with  this  difference  only,  that  it  is  claimed  to  be 
made  here,  before  issue  joined,  and  when,  of  course,  the  defendant  has 
abundant  time  and  opportunity  to  prepare  to  meet  the  claim  at  the 
circuit. 

I  see  no  objection  in  this  case  to  uniting  claims  for  both  legal  and 
equitable  relief  in  the  same  action.  Both  depend  on  the  same  transac- 
tion and  both  are  necessary  to  indemnify  the  plaintiff  for  past,  and  to 
protect  him  against  future  injurj-. 

I  think  the  proper  course,  under  our  present  system  of  practice,  is  to 
give  the  party  whatever  relief  is  applicable  to  the  facts  put  in  issue  in 
the  pleadings  and  established  on  the  trial,  whether  such  relief  be  legal 
or  equitable,  or  both.  And  I  see  no  reason  against  uniting  in  one  action 
claims  for  both  legal  and  equitable  relief  when  they  are  not  inconsist- 
ent with  each  other.  ^  Substantial  justice  must  no  longer  be  sacrificed 
to  mere  form  and  technicality.  ~ 

It  is  said  that  different  modes  of  trials  are  prescribed  for  legal  and 
equitable  issues.  But  they  are  not  necessarilj^  to  be  tried  differently, 
for  section  254  of  the  Code  gives  ample  power  to  the  court  to  direct 
that  the  latter  class  be  tried  before  the  same  tribunal,  which  is  pre- 
scribed by  sections  252  and  253  for  the  former  class.  Nor  is  the  distinc- 
tion at  all  material ;  in  as  much  as  the  court  adjudges  the  relief  in  all 
cases,  both  legal  and  equitable,  on  the  facts  established,  whether  they 
were  found  by  the  court  itself  or  by  a  jury. 

I  think  the  amended  complaint  is  regular,  and  the  motion  must  there- 
fore l)e  denied  with  $10  costs 

1  lyinden  v.  Hepburn,  (1850),  5  How.  Pr.  188. 


CRARY   V.    GOODMAN.  17 


CRARY  V.  GOODMAN, 


r^'';^'^^ 


Court  op  Appeals  op  New  York,  March,  1855.      , 

[12  A^.   V.  266.] 

Action  to  recover  possession  of  a  parcel  of  land  situate  in  Cattarau- 
gus Count3%  commenced  in  December,  184S.  The  cause  was  tried  in 
January,  1850,  before  Mr.  Justice  Hoyt.  The  plaintiff  proved  that  he 
had  the  legal  title  to  the  premises  in  controversy.  The  defendant 
proved  that  he  occupied  the  premises  as  tenant  under  one  Huntle}-,  and 
that  they  were  adjacent  to  other  lands  owned  by  the  latter ;  and  he 
alleged  in  his  answer,  and  offered  to  prove  upon  the  trial,  facts  tending 
to  show  that  the  land  in  dispute  was  included  in  the  purchase,  by  Hunt- 
ley, of  the  adjacent  premises  from  the  plaintiff's  grantors,  and  that  by 
a  mutual  mistake  of  the  parties,  it  was  not  included  in  the  conveyance 
thereof;  and  that  in  equity  Huntley  was  entitled,  as  against  the  plain- 
tiff and  his  grantors,  to  a  conveyance  of  the  premises,  the  possession 
of  which  was  in  controversy.  To  this  evidence  the  counsel  for  the 
plaintiff  objected ;  and  the  justice  decided  that  no  equitable  defence 
could  be  interposed  in  this  action  to  the  plaintiflf's  right  to  recover  upon 
the  legal  title,  and  rejected  the  evidence  ;  the  counsel  for  the  defendant 
excepted.  A  verdict  was  rendered  in  favor  of  the  plaintiff.  From  the 
judgnlent  entered  on  this  verdict  the  defendant  appealed.  The  case 
was  heard  on  the  appeal  at  a  general  term  of  the  Supreme  Court  in  the 
8th  District,  and  the  judgment  affirmed.  ^  The  defendant  appealed  to 
this  court.     The  case  was  submitted  on  printed  briefs. 

/^ice  &  Cobb,  for  the  appellant. 

D.  R.   Wheeler,  for  the  respondent. 

Johnson,  J.,  delivered  the  opinion  of  the  court.  The  principal 
ground  on  which  this  case  was  disposed  of  at  the  trial  was,  that  in  an 
■^action  to  recover  real  property  brought  under  the  code  of  1848,  when 
the  plaintiff 's  claim  is  founded  upon  a  legal  title,  the  defendant  can  not 
avail  himself  of  an  equitable  right  to  defeat  that  title  b}-  way  of  defence 
in  the  suit.  This,  likewise,  was  the  single  ground  upon  which  the 
•judgment  at  the  trial  was  affirmed  at  general  term.'-  Although  much 
difference  of  opinion  has  existed  in  the  different  courts  of  this  state  in 
regard  to  the  effect  of  the  Code  of  Procedure  in  this  particular,  the 
question  has  been  adjudged  in  this  court  ;■'  and  it  is  now  neither  neces- 
sary nor  proper  to  discuss  it.  In  the  case  cited,  which  was  an  action 
upon  a  judgment,  the  superior  court  of  the  City  of  New  York  allowed, 
as  a  defence  to  the  action,  facts  which  made  out  a  right  in  the  defend- 

1  See  9  Barbour,  657.        1 9  Barb.  657.       3  Dobson  v.  Pearce  (1854),  12  N.  Y.,  156,  in/ra,  p.  33. 


18  EFFECT   IN    ADJECTIVE    LAW. 

ant  to  relief  upon  equitable  grounds  against  the  judgment,  but  which 
confessedly  would  not  have  been  available  as  a  defence  to  the  action  at 
law,  before  the  Code.  The  case  arose  and  was  tried  in  the  Superior 
Court,  before  the  amendments  to  the  code  passed  in  1852,  one  of  which 
provides,  in  express  terms,  that  the  defendant  may  set  up  as  many 
defences  as  he  has,  whether  they  are  such  as  have  been  theretofore 
denominated  legal  or  equitable,  or  both.  This  judgment  was  afiirmed 
in  this  court  upon  the  ground,  that  since  the  enactment  of  the  Code, 
which  in  terms  abolishes  the  distinction  between  actions  at  law  and 
suits  in  equity,  and  prescribes  but  a  single  form  of  civil  action,  the 
question  in  an  action  is  not  whether  the  plaintiff  has  a  legal  right  or  an 
equitable  right,  or  the  defendant  a  legal  or  an  equitable  defence  against 
the  plaintiff's  claim  ;  but  whether,  according  to  the  whole  law  of  the 
land,  applicable  to  the  case,  the  plaintiff  makes  out  the  right  which  he 
seeks  to  establish,  or  the  defendant  shows  that  the  plaintiff  ought  not 
to  have  the  relief  sought  for. 

As  the  court,  upon  the  defendant's  offers  of  proof,  ruled  that  no 
equitable  defence  could  be  interposed,  and  in  this  was,  as  we  have  seen, 
in  error,  the  defendant  is  entitled  to  a  new  trial.  We  express  no  opin- 
ion whether  the  defendant  did  or  did  not  make  out  by  his  offer  such 
an  equitable  defence  ;  because,  if  his  offer  was  defective,  under  the  dis- 
tinct ruling  of  the  court,  no  alteration  in  its  terms  or  substance  would 
have  availed  him.  The  judgment  should  be  reversed  and  a  new  trial 
ordered.  Judgment  accordingly. 


LORD  HANMER  v.   FLIGHT. 

Common  Pleas   Division,  High  Court  of  Justice,  February 

12,    1876. 

[24    W.   R.   346.] 

This  was  an  appeal  from  an  order  made  b}'  Archibald,  J.,  at  chambers. 

The  plaintiff  is  the  owner  of  several  small  tenements  in  Church-lane 
St.,  Giles '-in-the-Fields,  which  by  an  indenture,  dated  the  26th  of  Sep- 
tember, 1859,  he  devised  to  Patrick  Mara  for  a  term  of  thirty-one  years 
at  a  yearly  rental  of  /105  payable  on  the  usual  quarter  days.  The 
lease  contained  covenants  to  pay  the  rent,  to  repair  and  amend  within 
three  months  after  notice,  and  to  pay  all  taxes  and  the  costs  of  all 
drains  and  other  works  executed  by  order  of  the  Board  of  Works,  and 
to  conform  to  all  the  bye-laws  of  the  Board  of  Works  and  Acts  of  Parlia- 
ment relating  to  common  lodging-houses,  etc.  About  the  year  1870 
the  defendant  entered  into  possession  of  the  premises  and  paid  the 
rent   reser\'ed  by  the  lease  up  to  March,  1874.     On  the  20th  of  Sep- 


LORD    HANMER    Z'.    FLIGHT.  19 

tember,  1875,  the  plaintiff  abandoned  the  premises,  part  of  them  being 
at  that  time  closed  by  order  of  the  Board  of  Works  requiring  their 
demolition,  and  the  rest  substantially  out  of  repair.  The  plaintiff  sued 
the  defendant  as  assignee  of  the  lease,  averring  breaches  of  all  the 
covenants,  and  claiming — (i)  possession  of  the  said  premises  ;  (2)  £157 
los.  for  arrears  of  rent  to  September  29,  1875,  or  for  the  use  and  occupa- 
tion of  the  premises  ;  (3)  ^600  damages  for  the  defendant's  breaches  of 
covenant  above  set  forth;  (4)  mesne  profits  from  September  29,  1875, 
down  to  the  date  of  the  plaintiff's  recovering  possession. 

The  defendant  in  his  statement  of  defence  denied  that  he  was  assignee 
of  the  lease  or  liable  under  any  of  its  covenants  ;  but  admitted  that  the 
lease  had  been  avoided,  and  that  the  plaintiff  was  entitled  to  re-enter. 
And  he  paid  into  court  the  sum  of  £25,  and  said  that  that  was  enough  to 
satisfy  the  plaintiff's  claim  in  respect  of  mesne  profits.  Upon  this  the 
plaintiff  took  out  a  summons  at  chambers  to  strike  out  some  of  the 
paragraphs  in  the  statement  of  defence,  and  also  claiming  judgment 
for  so  much  of  his  claim  as  related  to  money  due  for  rent  or  for  use  and 
occupation,  upon  the  ground  that  the  statement  of  defence  was  silent 
as  to  this  part  of  the  claim,  and  therefore  admitted  that  the  defendant 
had  been  in  possession  of  the  premises  from  1S70  to  September,  1875.^ 
On  the  2ist  of  December,  1875,  Master  Dodgson  amended  paragraph  3 
of  the  statement  of  defence,  but  refused  judgment.  On  January  26, 
1876,  Archibald,  J.,  varied  this  order,  giving  the  plaintiff  liberty  to 
sign  judgment  for  ^157  105.  arrears  of  rent  to  September  29,  1875,  and 
for  costs  of  appeal,  and  his  lordship  also  amended  paragraph  2  of  the 
statement  of  defence.  On  the  next  day  the  defendant  gave  notice  of 
appeal  to  this  divisional  court. 

BcasUy,  for  the  defendant  now  moved  the  court  for  a  rule  rescinding 
so  much  of  the  order  of  Archibald,  J.,  as  varied  the  order  of  Master 
Dodgson. 

Bowen,  in  support  for  the  order. 

Brett,  J. — ^This  is  one  of  the  cases  which  show  the  value  ot  the 
reforms  introduced  by  the  Judicature  Act.  Formerly,  a  man  who  had 
a  substantial  right  to  be  paid  a  sum  of  money  could  not  recover  until 
lie  had  determined  upon  a  particular  form  of  action,  and  had  estab- 
lished that  the  circumstances  justified  an  action  in  that  form.  But 
now  when  a  man  clearly  has  an  undoubted  right  to  recover  the  money 
in  some  form  of  action  or  other,  he  may  at  once  sign  judgment  for  the 
amount  without  staying  to  determine  the  precise  legal  relation  on 
which  he  stands  to  the  defendant.  Objection  has  been  taken  to  the 
statement  of  claim  in  this  case  on  the  ground  that  it  does  not  disclose 
in  what  precise  form  of  action  the  plaintiff  wishes  to  recover  his  rent. 
But  it  need  not  do  so.  Pleadings  are  now  to  be  merely  concise  state- 
ments of  the  facts  which  the  party  pleading  deems  material  to  his  case. 
This  statement  contains  allegations  of  all  the  facts  that  the  plaintiff 

1  Ord.  19,  r.  17. 


20  EFFECT   IN   ADJECTIVE    LAW. 

deemed  necessary  to  establish  his  legal  rights,  but  it  does  not  state, 
and  it  need  not  state,  what  form  his  legal  rights  take.  That  is  an  infer- 
ence of  law  to  be  drawn  by  the  court  from  the  facts  averred  on  either 
side.  Allegations  of  fact  are  made  in  this  statement  of  claim,  and 
some  are  denied,  and  some  are  not.  Those  that  are  not  denied  are 
taken  as  being  admitted.  And  then  by  Order  14,  rule  4,  "  If  it  appear 
that  the  defence  set  up  by  the  defendant  applies  only  to  a  part  of  the 
plaintiff's  claim,  or  that  any  part  of  his  claim  is  admitted  to  be  due, 
the  plaintiff  shall  have  judgment  forthwith  for  such  part  of  his  claim 
as  the  defence  does  not  apply  to,  or  as  is  admitted  to  be  due. ' '  What 
are  the  undisputed  facts  in  this  case  ?  It  is  not  denied  by  the  defend- 
ant that  he  was  in  possession  of  these  premises,  that  he  paid  rent  for 
them  at  the  rate  of  ^105  a  year,  up  to  Lady  day,  1874,  that  he  contin- 
ued in  possession  of  them  till  September,  1875,  but  that  for  that  further 
period  he  has  not  paid  his  rent.  Surely,  then,  judgment  may  be  signed 
at  once  for  the  eighteen  months'  rent.  The  defendant  can  not  turn 
round  now  and  say  to  the  plaintiff,  "  You  are  not  my  landlord.  "  He  is 
estopped  from  saying  so.  He  must  pay  his  rent  as  before.  Nor  are  we 
concerned  to  inquire  in  what  precise  legal  relation  the  defendant  stands 
to  the  plaintiff,  or  to  Patrick  Mara,  or  to  any  one  else.  That  may  be  a 
necessary-  inquiry  with  regard  to  the  want  of  repair,  and  the  other  mat- 
ters contained  in  this  statement  of  claim.  But,  however  that  may 
turn  out,  it  is  abundantly  clear  that  an  action  in  some  form  or  other 
must  sooner  or  later  have  justified  this  judgment.  This  is  precisely 
the  case  contemplated  b}'  the  statute.  The  order  of  my  Brother  Archi- 
bald is  quite  correct  and  judgment  may  be  signed  forthwith.  And  this 
motion  must  be  dismissed  with  costs. 
Archibald  a?id  Lindley,  JJ.,  concurred." 


WILLIAMS  V.  HAYES. 

Supreme  Coxtrt  op  New  York,  Rensselaer  Special  Term, 
January,   185  i. 

[5  How.  Pr.  470.] 

Motion  to  strike  out  irrevelant  and  redundant  matter.  The  action 
was  brought  to  restrain  the  defendant  from  foreclosing  a  mortgage  exe- 
cuted by  the  plaintiff  and  his  wife  to  one  Boughton,  and  to  have  the 

1  The  ruling  in  this  case  was  reversed  in  the  Court  of  Appeal,  which  was  "unanimously 
of  opinion  that  although  the  statement  of  defence  did  not  answer  the  plaintiff 's  claim  for 
use  and  occupation,  the  facts  disclosed  in  the  statement  of  claim  did  not  support  the  claim 
for  such  use  and  occupation  of  the  premises,  and  that  under  these  circumstances  the  plain- 
tiff was  not  entitled  to  sign  judgment  under  Order  XIV.,  r.  4,  for  the  sum  claimed  in  respect 
of  such  use  and  occupation."    Lord  Hanmer  v.  Flight  (1876),  36  L-  T.  279. 


WILLIAMS    V.    HAYES.  21 

same  cancelled.  The  complaint  states  that  on  the  7th  of  April,  1838, 
the  plaintiff  and  his  wife  mortgaged  certain  premises  to  Boughton  to 
secure  the  payment  of  $250 ;  that  Boughton  died  in  1846,  and  that, 
before  his  death,  the  mortgage  had  been  fully  paid  ;  that  after  the  death 
of  Boughton  the  mortgage  came  into  the  possession  of  the  defendant, 
who  claims  to  be  the  owner  and  assignee  thereof,  and  is  seeking  to 
foreclose  the  same.  The  complaint  then  proceeds  to  vState  that  Bough- 
ton had  in  his  lifetime  publicly  stated  that  the  plaintiff  had  paid  up  the 
mortgage,  and  that  he  was  indebted  to  the  plaintiff;  that  the  only 
reason  why  the  mortgage  had  not  been  legally  discharged  was,  that  the 
parties,  being  ignorant  of  the  law,  had  not  deemed  it  necessarj' ;  that 
after  the  mortgage  had  come  into  the  possession  of  the  defendant,  he 
had  sold  it  to  one  Greenman,  representing  that  there  Was  still  due 
thereon  $54  ;  that  Greenman  having  ascertained  that  the  mortgage  had 
been  paid  and  that  its  payment  could  be  proved,  sued  the  defendant  to 
recover  back  the  amount  paid  for  the  mortgage,  and  before  the  trial  the 
defendant  refunded  to  Greenman  the  amount  paid  by  him,  and  received 
the  mortgage  back  ;  that  after  this  the  defendant  had  offered  to  sell  and 
deliver  the  mortgage  to  the  plaintiff  for  $30,  which  the  plaintiff,  to 
avoid  litigation,  had  agreed  to  pay,  upon  condition  that  the  defendant 
would  execute  an  instrument  whereby  it  might  be  legally  discharged, 
which  the  defendant  refused  to  do  ;  that  before  the  death  of  Boughton 
he  and  the  plaintiff  had,  for  six  years  or  more,  dealt  largely  together 
and  had  not  settled  ;  that  they  were  about  settling  when  Boughton 
died  ;  that  the  plaintiff  has  but  little  property,  and  if  the  defendant  is 
permitted  to  enforce  the  mortgage,  the  plaintiff  will  be  left  nearly,  if 
not  entirely  destitute. 

All  these  statements,  subsequent  to  the  allegation  that  the  defendant 
is  seeking  to  foreclose  the  mortgage,  the  defendant  moved  to  strike  out, 
as  redundant  or  irrevelant. 

E.  R.  Peck,  for  plaintiff. 

Bingham  &  McClella?t,  for  defendant. 

Harris,  Justice. — A  prominent  object  of  reform  instituted  b}'  the 
Code  was  ''to  simplify  atid  abridge  pleadings,'''  to  substitute  for  the 
unmeaning  forms,  and  prolix  statements  with  which  pleadings,  both 
at  law  and  in  equitj',  had  been  incumbered,  a  simple  statement  of  the 
facts  which  constitute  the  cause  of  action,  or  the  grounds  of  defence, 
in  such  a  manner  as  to  present  to  the  court  the  precise  points  in  dis- 
pute, and  when  the  controversy  is  ended,  to  preserve  a  record  of  the 
precise  matters  determined.  Hence  it  is  specificall}'  required,  in  respect 
to  all  pleadings,  that  the  matter  to  be  alleged  shall  be  stated  in  "ordi- 
nary and  concise  language."  The  complaint  is  to  contain  "  a  state- 
ment of  the  facts  constituting  the  cause  of  action."  The  answer, 
besides  a  denial  of  the  allegations  of  the  complaint,  may  contain  a 
statement  of  any  new  matter  constituting  a  defence.  In  like  manner 
the  reply,  in  addition  to  a  denial  of  the  statements  in  the  answer,  may 


22  EFFECT   IN   ADJECTIVE   LAW. 

contain  allegations  of  new  matter,  in  avoidance  of  the  answer.^ 
Whatever  statements  may  be  found  in  either  of  these  pleadings 
beyond  this,  are  redundant  or  irrelevant ;  and  this,  too,  whatever 
the  nature  of  the  action  ;  whether  under  the  system  now  abolished  it 
•  would  have  been  a  case  of  legal  or  equitable  cognizance.  It  was  the 
avowed  object  of  the  legislature,  in  adopting  the  Code,  not  only  to  abol- 
ish the  distinction  between  legal  and  equitable  remedies,  but  to  estab- 
lish an  uniform  course  of  proceeding  in  all  cases  (see  preamble  to  the 
Code).  Under  such  a  system,  neither  the  rules  by  which  the  sufficiency 
or  insufficiency  of  pleadings  in  common  law  courts,  nor  those  which 
were  applicable  to  pleadings  in  courts  of  equitable  jurisdiction,  can  be 
adopted  as  a  sure  guide.  The  principle  by  which  questions  of  this 
description  are  to  be  determined  under  the  present  system,  has  been 
exceedingly  well  stated  by  Mr.  Justice  Selden,  in  Knoiules  v.  Gee.^  The 
facts  which  pleadings  under  the  Code  are  to  contain  are,  he  says,  "  issu- 
able facts — facts  essential  to  the  cause  of  action,  or  defence,  and  not 
those  facts  and  circumstances  which  merely  go  to  establish  such  essen- 
tial facts. '  '^  The  criterion  in  every  such  case  is,  I  think,  whether  the 
allegation  in  question  can  be  made  the  subject  of  a  material  issue.  If 
it  can,  it  has  a  right  to  be  found  in  the  pleadings  ;  if  not,  it  ought  not  to 
be  there.  The  rule  may  be  illustrated  by  the  case  under  consideration. 
A  material  fact  stated  in  the  complaint  is,  that  the  mortgage  in  ques- 
tion has  been  paid.  Upon  this  allegation  a  material  issue  might  be 
made.  Upon  this  issue,  it  would  be  very  pertinent  to  prove  another 
allegation  in  the  complaint,  that  the  mortgagee  had  in  his  life  time 
publicly  stated  that  the  mortgage  was  paid.  This  would  be  evidence 
tending  to  show  that  the  mortgage  was  in  fact  paid  ;  but  could  a  mate- 
rial issue  be  made  upon  the  latter  allegation  ?  Whether  the  mortgagee 
had  said  so  or  not,  is  only  important  as  it  may  furnish  evidence  upon 
another  issue,  that  is,  whether  the  mortgagee  had,  in  fact,  been  paid  or 
not.  In  the  language  of  Justice  Selden,  "it  is  a  fact  which  merely 
goes  to  establish  the  essential_/??r/, ' '  namely,  that  the  mortgagee  is  really 
paid.  The  Code  has  nowhere  provided  that  evidence,  or,  which  is  the 
same  thing,  facts  which  constitute  evidence  of  an  essential  fact  in  the 
case,  may  be  inserted  in  any  pleading.  On  the  contrary  it  lim:ts  plead- 
ings to  the  statement  of  such  facts  as  constitute  a  cause  of  action  or  a 
defence  ;  or,  in  ca.se  of  a  reply,  such  facts  as  will  avoid  a  defence.  The 
learned  judge  whose  doctrine,  as  stated  in  Knowles  v.  Gee,^  I  am  so 
willing  to  adopt,  has,  in  a  more  recent  case  himself  laid  down  a  diifer- 
ent  rule.-'^  In  The  Rochester  City  Bank  v.  Siiydam  he  has  held  that 
"the  statement  of  facts  in  the  complaint,   should  be  in  conformity 

iCode,  gg  142,  149,  153. 
24  Howard  Pr.  317  (1850). 

3  See  also  Shaw  v.  Jaynes,  4  Howard  Pr.  119  ;  Glenny  v.  Hitchins,  id.  gS  ;  Russell  v.  Clapp, 
id.  347  ;  McMurray  v.  GifFord,  5  id.  14. 
44  Howard  Pr.  317  (1850). 
5  Howard  Pr.  216  (1851). 


LK  KOY    :•.    MARSHALL,.  23 

with  the  nature  of  the  action.  If  the  case  and  relief  sought  be  of  an 
equitable  nature  then  the  rules  of  chancery  pleading  are  to  be  applied  ; 
otherwise  tho.se  of  the  common  law.  With  great  deference,  I  am  con- 
strained to  di.s.sent  from  this  conclusion.  It  was  not  the  intention  of 
the  legislature,  in  adopting  the  Code,  to  continue  the  di.stinction 
between  common  law  and  equity  pleadings.  On  the  contrary,  it  was 
intended  that  there  should  be  but  one  system  of  pleadings.  It  was  not 
intended  that  the  rules  of  common  law  pleading  should  be  applicable 
to  one  class  of  ca.ses,  and  those  of  chancery  pleading,  to  another.  On 
the  contrary,  it  was  intended  that  neither  the  rules  of  common  law 
pleading,  not  those  of  equity  pleading,  should  be  exclusively  applica- 
ble to  any  case  of  pleading  under  the  Code.  In  every  ca.se  the  criterion, 
by  which  to  judge  of  the  sufficiency  or  insufficiency  of  the  pleading,  is 
to  be  the  same.  Whether  the  case  is  one  of  an  equitable  nature,  or  of 
common  law  jurisdiction,  so  far  as  the  pleading  states  facts  essential  to 
the  cause  of  action,  or  the  defence,  or  to  avoid  thematter  of  the  defence, 
so  far  it  is  unobjectionable  ;  whatever  el.se  it  contains,  is  redundant  or 
irrelevant,  and  may  properly  be  stricken  out.' 

The  mctio)i  must  be  granted  with  costs. 


LeROY  :'.  MARSHALL.  ^ 

SUPREME    COURT   OF   NEW    YORK,   DUTCHESS  SPECI.\L  TERM,  JUXE,    1S33. 

[8  How.  Pr.  373.] 

The  plaintiff  ha\nng  a  judgment  against  Stephen  Briggs,  Henry 
Briggs,  and  Elias  AUe}',  upon  which  an  execution  had  been  returned 
unsatisfied,  brings  this  action  to  reach  certain  property  assigned  by 
Stephen,  for  the  benefit  of  his  creditors.  It  is  alleged  that  the  assign- 
ment was  made  to  hinder,  dela}-,  and  defraud  creditors,  and  especially,  \ 
that  it  fraudulently  provided  for  the  payment  of  two  notes,  of  S500  1 
each,  given  by  Stephen  to  two  of  his  sons,  which  notes,  the  complaint 
avers,  were  given  without  consideration. 

The  an.swer  of  all  the  defendants  .sets  up,  among  other  things,  that 
said  Stephen  was  only  surety  on  the  claim  upon  which  the  judgment 
was  founded. 

The  an.swer  also  admits  the  giving  of  the  two  notes,  and  sets  forth, 
particularly  and  circumstantially,  the  consideration  therefore,  which 
consisted  of  work  and  labor  j^erformed  b\-  the  sons  for  the  father,  after 
they  had  attained  lawful  age  ;  for  which,  on  a  settlement  made,  the 
indebtedness  was  found  due.  The  answer  further  sets  forth,  that  one 
of  the  sons,  Stephen  D.  Briggs,  gave  his  note  to  the  other  son,  Daniel 

1  Part  of  the  opinion  is  omitted. 


24  EFFECT   IN   ADJECTIVE    LAW. 

Briggs,  to  secure  him  for  an  indebtedness  of  $325,  and  his  liabilit}-  on 
a  note  of  $1,000,  to  one  Wilbur,  and  that  the  assignees,  in  good  faith, 
paid  one  half  of  said  two  $500  notes,  which  amount  was  applied  toward 
the  $325  note,  and  the  Wilbur  note. 

The  plaintiff  moves  to  strike  out  the  portions  of  the  answer  above 
given,  on  the  ground  that  the  same  are  irrelevant,  immaterial  or 
redundant. 

/.   V.   W.  Doty,  for  plaintiff. 

H.  A^igevine,  for  defendants. 

Barculo,  Justice. — The  decision  of  this  motion  depends  upon  adopt- 
ing or  rejecting  the  principle  laid  down  in  Williams  v.  Hayes}  Millike n 
V.  Cary,''  and  some  other  kindred  cases.  That  principle  requires  us  to 
apply  the  same  rules  to  pleadings  in  equitable  as  in  legal  actions.  If 
we  are  governed  by  those  cases,  this  motion  must  be  granted  ;  for  it  can 
not  be  said  that  the  matters  complained  of  deny  any  material  allega- 
tions of  the  complaint,  or  constitute  "a  defence  or  counter  claim," 
within  the  terms  of  the  Code. 

But  I  apprehend  that  the  cases  above  referred  to  do  not  contain  a  true 
exposition  of  the  law  on  this  subject.  On  the  contrary,  I  find  a  much 
more  sensible  as  well  as  practicable  rule,  laid  down  with  great  clear- 
ness and  force,  by  Justice  Selden,  in  The  Rochester  City  Batik  v.  Suy- 
dani,"^  and  Wooden  v.   Waffle} 

I  am  not  prepared  to  deny,  that  the  authors  of  the  Code  may  have 
supposed  that  law  and  equity  could  be  administered  in  precisely  the 
same  forms  ;  nor  that  some  sections  of  the  Code  were  designed  for  that 
purpose.  But  ever}'  judge  knows,  and  everj'  lawyer  should  know,  that, 
in  practice,  the  thing  is  impossible. 

Legal  and  equitable  proceedings  are  essentially  different  from  each 
other,  in  their  origin,  nature,  and  object.  In  a  common  law  action  the 
plaintiff  presents  an  absolute  right  to  relief,  in  the  most  concise  and 
expressive  language.  He  states  his  title  and  nothing  more.  The 
defendant  also  presents  his  defence  with  the  same  certainty  and  pre- 
cision. The  jury  find  the  disputed  facts  ;  and  thereupon  the  law  ren- 
ders a  certain  judgment.  But  in  a  suit  in  equity  none  of  this  rigid  logic 
prevails.  The  plaintiff  may  spread  out  his  case  more  at  length,  he  may 
accompany  it  with  important  circumstances,  and  set  forth  the  facts  more 
in  detail,  for  he  is  to  make  out  a  case  for  the  conscience  of  the  court ; 
and  the  particulars  of  his  relief  may  depend  somewhat  upon  the  discretion 
of  the  court.  So  the  defendant  may  meet  his  case  in  like  manner.  A 
legal  claim  is  a  single  proposition,  which  must  stand  in  all  its  parts  or 
fall.  An  equitable  claim  may  be  composed  of  numerous  independent 
facts;  all  of  which,  or  only  a  portion,  may  be  required  to  satisfy  the 
court.  The  one  is  a  chain  which  is  worthless  if  a  single  link  fail ;  the 
other  a  rope  composed  of  numerous  strands,  some  of  which  may  give 
way,  and  yet  enough  remain  to  secure  some  relief.     Thus,  in  an  action 

ISHow.Pr.,  4-0(1851).     2  5  id.  272(1850).     35  How.  Pr.,  216(1851).     4  6  How.  Pr.,  145  (1851). 


LK  ROY    I'.    MARSHALL.  2o 

of  ejectment,  the  plaintiiT  merely  sets  forth  liis  title,  and  avers  that  the 
defendant  has  wrongfully  obtained  the  possession.  So  in  an  action  at 
law,  upon  mutual  covenant  for  the  purchase  of  land,  the  vendee  sets 
forth  the  agreement  and  avers  his  readiness  to  perform  on  the  day,  and 
the  defendant's  failure  to  ])erform  ;  and  without  such  readiness  to  per- 
form on  the  day,  he  cannot  recover.  But  in  equity  he  may  have  relief 
after  the  day.  In  that  case  he  must  .set  forth  the  circumstances  tending 
to  excuse  his  laches.  He  may  also  add  the  fact,  that  he  has  gone  into 
possession,  made  improvements,  made  paj^ments,  or  any  other  facts 
showing  a  part  performance,  or,  bona  fide  acts,  on  the  strength  of  the 
contract.  The  defendant  may  also  set  up  in  his  answer  that  the  prop- 
erty has  advanced  in  price,  or  that  he  has  prepared  to  make  other  dis- 
positions of  the  land  in  consequence  of  the  plaintiff's  failure  to  perform  ; 
and  generally,  any  circumstances  which  are  calculated  to  show,  that  in 
justice  and  equity  the  contract  ought  not  to  be  enforced.  The  court 
then  looks  through  the  case  and  founds  a  decree  upon  one  or  more  of 
these  facts  as  they  are  alleged  and  proved.  Now  it  is  quite  apparent 
that  one  of  these  circumstances  which  the  defendant  has  a  right  to  put 
into  the  case  for  the  consideration  of  the  court,  with  a  view  to  modify- 
ing or  affecting  its  decree,  may  not  come  up  to  the  requirements  of  the 
Code,  as  "  new  matter  constituting  a  defence  or  counter  claim, "  and 
therefore,  by  the  strict  interpretation  of  section  153,  must  be  held  bad 
on  demurrer.  And  yet  nothing  is  better  settled  than  that  such  facts  are 
pleadable  in  courts  of  equity  ;  and  nothing  can  be  clearer,  than  that 
their  exclusion  would  work  monstrous  injustice. 

But  it  is  unnecessary  to  multiply  illustrations.  They  must  be  famil- 
iar to  every  lawyer  of  respectable  practice.  Indeed,  it  would  be  matter 
of  astonishment — if  we  were  permitted  to  wonder  at  any  thing  in  this 
line — that  any  man,  of  "common  understanding,  "  should  have  suffered 
the  idea  to  enter  his  head,  that  legal  and  equitable  proceedings  could 
be  moulded  in  the  same  form,  and  be  measured  by  the  same  rules. 
Every  per,son  who  has  studied  and  understands  the  law  as  a  science, 
knows,  that  there  is  snbjtliJice  in  the  distinctions  between  actions  ;  and 
that  those  requirements  which  superficial  observers  call  "unmeaning 
forms  and  prolix  statements, "  were  really  wise  and  indispensable  safe- 
guards and  protections,  in  administering  the  most  important  as  well  as 
the  most  intricate  of  human  sciences. 

But  it  is  said  that  our  construction  repeals  the  Code.  If  this  were 
true,  I  should  deem  it  not  an  unpardonable  offence.  But  we  do  not 
repeal  it.  It  repeals  itself.  It  has  been  meddling  with  a  subject  not 
understood;  and  has  come  into  collision  with  a  "higher  law," — the 
law  of  nature — which  it  can  not  overcome.  For  the  distinctions  which 
mark  law  and  equity  are  laid  broad  and  deep  in  the  natiire  of  things. 
The  very  origin  of  the  Court  of  Chancer}'  shows  this.  It  was  the  im- 
possibility of  administering  true  justice  in  all  cases  in  the  common  law 
forms — the  necessity  of  something  more  flexible  and  j'ielding  in  its 


y 


'Z6  EFFliCT    IN    ADJECTIVE    LaW". 

requirements — which  gave  birth  to  equitable  courts  and  equitable  pro- 
ceedings. The  distinction  is  there,  and  can  not  be  obliterated.  For,  as 
Justice  Selden  truly  remarks  in  Wooden?',  l^affle,^  "Nature  has  made 
some  laws,  and  these  it  is  difficult  to  repeal. " 

If  we  could  be  induced  to  hesitate  between  our  natural  desire  to  fol- 
low the  Code,  and  the  preservation  of  the  equitable  powers  of  the 
court,  we  could  find  the  Constitution  pointing  out  the  proper  path  to 
choose.  That  instrument  declares,  as  I  understand  it,  that  equity  shall 
be  administered  by  this  court.  I  have  already  shown  that  it  can  not 
be  administered  upon  legal  pleadings  ;  nor  upon  the  pleadings  contem- 
plated by  the  Code  ;  but  only  upon  equitable  pleadings  as  they  were 
in  substance  at  the  adoption  of  the  Constitution.  Although,  some  may 
perhaps  consider  the  Code  the  highest  authority,  as  it  is  the  latest,  I 
prefer  the  old  fashioned  notion  of  adhering  to  the  Constitution  as  the 
safest  guide  for  the  present. 

The  motiofi  is  denied,  but  ivithout  costs. 


NOTE     ON     CONSTITUTIONALITY    OF    A    STATUTE    ABOLISHING     THE     DIS- 
TINCTION   BETWEEN   ACTIONS   AT    LAW   AND   SUITS   IN    EQUITY. 

This  question  of  the  constitutionality  of  the  enactment  professing  to 
abolish  the  distinction  between  actions  at  law  and  suits  in  equity  held 
a  ver}'  prominent  place  in  the  earlier  judicial  utterances  on  the  code. 
The  New  York  constitution  of  1846,  which  had  provided  for  the  appoint- 
ment of  a  commission  "to  revise,  reform,  simplify,  and  abridge  the 
rules  of  practice,  pleadings,  forms,  and  proceedings  of  the  courts  of 
records  of  this  State  " — the  commission  which  framed  our  earliest  code 
of  procedure — had  provided  also  that  "  the  trial  by  jury,  in  all  cases  in 
which  it  has  been  heretofore  used,  shall  remain  inviolate  forever ;"  that 
"there  shall  be  a  supreme  court  having  general  jurisdiction  in  law  and 
equity  ,■"  and  that  "the  testimony  in  equity  cases  shall  be  taken  in  like 
manner  as  in  cases  at  law."  (N.  Y.  Const.,  1S46,  Art.  I,  §  2  ;  Art.  VI, 
§§  3,  10.)  And  it  was  very  earnestly  insisted,  both  on  and  off  the 
bench,  that  these  provisions  in  effect  gave  a  constitutional  sanction  -to 
the  separate  continuance  of  the  two  systems  of  pleading.  The  consti- 
tution itself  recognized  jurisdiction  at  law  as  distinct  from  jurisdiction 
in  equity  and  this  was  sufficient,  in  the  view  of  many,  "  to  impose  upon 
the  power  of  the  legislature  the  restriction  to  preserve  distinct  methods 
of  enforcing  legal  and  equitable  rights."  To  permit  both  legal  and 
equitable  relief  to  be  administered  in  one  suit  was  certainly — so  the 
argument  ran — to  destroy-  the  distinction  between  law  and  equity,  and 
possibly  to  imperil  trial  by  jury.  Indeed,  the  clause  "there  shall  be  a 
Supreme  Court  having  general  jurisdiction  in  laiv  and  equity  "  was  of 
itself  enough,  said  able  judges,  to  present  an  insuperable  barrier  to  any 
legislative  merger  of  the  two  jurisdictions,    yet  such  merger,  it  was 

16  How.  Pr.  145(1851)- 


LE  ROY    :'.     MARSHALL.  27 

thouf^fht,  must  in  fact  occur  if  the  distinctions  between  actions  at  law 
and  suits  in  equity  were  abrogated.  "So  long  as  jurisdiction  in  equity 
and  at  law  are  kejit  distinct  and  courts  of  justice  are  permitted  to  adopt 
the  relief  they  aflbrd  to  the  facts  and  circumstances  in  one  class  of  cases 
while  they  are  confined  to  a  simple  judgment  for  or  against  the  plaintiff 
in  all  others,  so  long,"  it  was  said,  "must  different  rules  be  applied  to 
pleadings  at  law  and  in  equity."  Crary  v.  Goodmait,  9  Barb.,  657,  659 
(1851);  Rochester  City  Bank  v.  Suydam,  5  How.  Pr.,  216,  222  (1S51); 
Wooden  :•.  Waffle,  6  How.  Pr..  145,  149  (1851).  Accordingly  it  was 
held  for  a  time — to  give  a  single  instance— that  in  an  action  brought 
after  the  adoption  of  the  code  to  recover  possession  of  land,  and  founded 
on  a  legal  title  in  the  plaintiff",  an  equitable  right  in  the  defendant  to 
have  the  land  conveyed  to  him  was  not  a  defence,  "any  more  than  it 
was  before  the  code  was  adopted."  Crary  v.  Goodman,  9  Barb.  (N.  Y.) 
657,  662  (1851),  reversed  in  12  N.  Y.,  266  (1855). 

In  other  words,  the  terms  "law"  and  "equity"  were  supposed  to 
carry  with  them  the  modes  of  procedure  peculiar  to  each  ;  and  the  dis- 
tinction between  these  terms  in  the  constitution,  with  its  insistence 
upon  the  right  of  trial  by  jury,  was  supposed  to  require  that  these  modes 
of  procedure  also  be  kept  separate. 

The  argument  against  the  constitutionality  of  the  section  was  elab- 
orate!}'presented  b}^  Judge  Selden  in  Reubcfis  v.  Joel  (1856),  13  N.  Y. 
488,  494,  although  apparently,  it  was  not  essential  to  the  decision  of 
that  case,  and  although  a  majority  of  the  New  York  Court  of  Appeals 
were  alreadj^  taking  a  different  view  (See  Dobson  v.  Pearce  (1854)  12  N. 
Y.  156  ;   Crary  v.  Goodman  (1855)  12  N.  Y.  266). 

The  argume?it  of  the  Court  in  Reubens  v.  Joel. 
' '  Another  leading  distinction  between  common  law  actions  and  suits 
in  equit)',  "  said  Judge  Selden  in  Reubens  v.  Joel,  "  consists  in  their  dif- 
ferent modes  of  trial.  The  former  are  to  be  tried  by  a  jury,  the  latter 
by  the  court.  Can  the  Legislature  abolish  this  distinction  ?  The}- 
might,  but  for  the  restraints  of  the  Constitution,  abolish  either  kind 
of  trial  or  re-classify  the  classes  to  which  they  apply  :  but  they  can  not 
make  trial  by  jury  and  trial  by  the  court  the  same  thing.  It  is  plain 
that  the  only  way  in  which  the  declaration  contained  in  section  69, 
that  "there  shall  be  in  this  State  hereafter  but  one  form  of  action  for 
the  enforcement  or  protection  of  private  rights,  and  the  redress  of  pri- 
vate wrongs, "  can  be  made  good,  is  by  abolishing  both  the  form  of 
trial  and  the  mode  of  relief  in  one  or  the  other  of  the  two  classes  of 
actions.  When  this  is  done,  and  not  till  then,  shall  we  have  one 
homogeneous  form  of  action  for  all  cases.  Has  the  Legislature  power 
to  do  this  ?  The  Constitution  contains  the  following  provisions,  viz.  : 
'  There  shall  be  a  Supreme  Court,  having  general  jurisdiction  in  law 
and  equity. ' '  (Art.  6,  §  3.)  '  The  Legislature  shall  have  the  same  power 
to  alter  and  regulate  the  jurisdiction  and  proceedings  in  law  and  equity 


28  EFFECT    IN    ADJECTIVE    LAW. 

as  they  have  heretofore  possessed.'  (g  5-)  'The  testimony  in  equity 
cases  shall  be  taken  in  like  manner  as  in  cases  at  law.'  (§  lo.)  Will 
it  be  contended,  in  the  face  of  these  provisions,  that  the  Legislature 
has  power  to  abolish  the  jurisdiction  of  the  courts,  either  at  law  or  in 
equity  ?  The  Constitution  gives  to  the  Supreme  Court  general  juris- 
diction both  in  law  and  equity.  Can  this  be  taken  away  ?  It  author- 
izes the  Legislature  to  '  alter  and  regulate  '  both  jurisdictions.  Does 
this  mean  that  it  may  abrogate  them  ? 

"  It  is,  in  my  judgment,  clear  that  the  Legislature  has  not  the  consti- 
tutional power  to  reduce  all  actions  to  one  homogeneous  form  ;  because 
it  could  only  be  done  by  abolishing  trial  by  jury,  with  its  inseparable 
accompaniment,  compensation  in  damages,  which  would  not  only  con- 
flict with  article  i,  section  2,  which  preserves  trial  by  jury,  but  would 
in  effect  subvert  all  jurisdiction  at  law,  as  all  actions  would  thereby  be 
rendered  equitable  ;  or,  by  abolishing  trial  by  the  court,  with  its  appro- 
priate incident,  specific  relief,  which  would  destroy  all  equity  jurisdic- 
tion and  convert  every  suit  into  an  action  at  law. 

"  If  we  recur  to  the  proceedings  of  the  convention  which  framed  the 
Constitution,  all  doubts  as  to  its  true  construction  in  this  respect  will 
be  removed.  The  committee  on  the  judiciary  reported  on  the  ist  day 
of  August,  and  that  report,  section  3,  providing  for  a  Supreme  Court, 
reads  as  follows  :  '  There  shall  be  a  Supreme  Court,  having  the  same 
jurisdiction  in  law  and  equity  which  the  Supreme  Court  and  Court  of 
Chancery  now  have,  subject  to  regulation  by  law. '  On  the  tenth  day 
of  August,  a  member  moved  to  add  to  the  report  the  following :  'And 
to  the  end  that  ultimately  the  jurisdiction  of  law  and  equity  may  not 
be  separately  administered,  and  that  the  two  may  be  blended  into  one 
harmonious  system,  the  Legislature  shall  provide  by  law,  as  far  as  may 
be,  a  common  form  of  procedure  for  remedies  arising  under  both  juris- 
dictions. '  This  proposition  was  afterward  modified  so  as  to  read : 
'  The  Legislature  shall  provide  by  law  for  a  uniform  system  of  proce- 
dure in  the  administration  of  justice  in  civil  cases,  without  regard  to 
the  distinctions  heretofore  had  between  different  forms  of  actions  and 
different  jurisdictions  in  law  and  equity.'  After  a  week's  debate  upon 
this  and  kindred  propositions,  calling  forth  most  of  the  eminent  legal 
talent  and  learning  in  the  convention,  all  the  propositions  looking  to 
a  blending  of  the  modes  of  proceeding  in  the  two  jurisdictions  were 
rejected,  and  the  section  was  adopted  as  it  now  stands  in  the  Constitu- 
tion. (Vide  Debates  in  Conv.,  Atlas  ed.,  481-582.)  Thus,  it  will  be 
seen  that  section  69  of  the  Code  is  an  attempt  to  exercise  a  power  which 
the  convention,  in  framing  the  Constitution,  expressly  refused  to  confer 
upon  the  Legislature." 

"In  the  case  of  Parsons  v.  Bedford  et  al  (3  Pet.  433).  the  Supreme 
Court  of  the  United  States  put  a  construction  upon  that  clause  in  our 
National  Constitution  (Art.  3,  §  2)  which  declares:  'That  the  judicial 
power  shall  extend  to  all  cases  in  law  and  equity  arising  under  the 


I,K  ROY    :'.    MARSHALL.  29 

Constitution,  the  laws  of  tlic  I'nited  States,  and  treaties  made  or  which 
shall  be  made  under  their  authorit}-, '  etc.,  taken  in  connection  with  the 
7th  amendment,  which  provides  that  '  In  suits  at  common  law,  where 
the  value  in  controversy  shall  exceed  $20,  the  right  of  trial  by  jury 
shall  be  preserved  ;  and  no  fact  once  tried  by  a  jury  shall  be  otherwise 
re-examinable  in  any  court  of  the  United  States  than  accordinj^  to  the 
rules  of  the  common  law. '  The  Legislature  of  Louisiana  had  enacted 
'  That  when  any  cause  shall  be  submitted  to  a  jury  to  be  tried,  the  ver- 
bal evidence  shall  in  all  ca.ses,  where  an  appeal  lies  to  the  Supreme 
Court,  if  either  party  require  it,  and  at  the  time  when  the  witnesses 
shall  be  examined,  be  taken  down  in  writing  by  the  clerk  of  the  court, 
in  order  to  be  sent  up  to  the  Supreme  Court,  to  serve  as  a  statement  of 
facts  in  case  of  appeal.'  And  by  a  law  of  the  United  States,  passed 
the  26th  of  Ma}-,  1824,  the  mode  of  practice  pursued  in  the  courts  of 
Louisiana  is  directed  to  be  followed  in  the  courts  of  the  United  States 
in  that  State.  Upon  the  trial  of  the  cause  in  the  United  States  Dis- 
trict Court,  before  a  jury,  it  being  a  common-law  astion  to  recover  a 
debt,  the  defendant  applied  to  the  court  to  have  the  testimony  taken 
down  pursuant  to  the  statute  and  the  practice  in  that  State,  with  a  view 
to  an  appeal,  which  the  judge  refused,  upon  the  ground,  as  it  would 
seem,  that  it  was  a  common-law  action,  and  the  facts  could  not  be 
reviewed.  Upon  writ  of  error  to  the  Supreme  Court,  it  was  argued  for 
the  plaintiff  in  error  that  there  was  no  distinction  between  law  and 
equity  in  the  State  of  Louisiana  ;  and  that  if  that  distinction  was  rec- 
ognized in  the  United  States  Court,  in  proceedings  in  that  State,  it 
would  become  necessary  to  introduce  the  forms  of  the  common  law 
there,  which  would  be  productive  of  great  inconvenience.  But  the 
court  held  that  the  distinction,  being  recognized  in  the  Constitution, 
could  not  be  abolished  by  State  legislation,  nor  disregarded  bj-  the 
courts.  Judge  Story  says :  '  The  Constitution  has  declared,  in  the 
3d  article,  that  the  judicial  power  shall  extend  to  all  cases  in  law  and 
equity, '  etc.  '  It  is  well  known  that  in  civil  causes,  in  courts  of 
equity  and  admiralty,  juries  do  not  intervene,  and  that  courts  of  equity 
use  the  trial  by  jury  only  in  extraordinary  cases,  to  inform  the  con- 
science of  the  court.  When  therefore,  we  find  that  the  amendment 
requires  that  the  right  of  trial  by  jury  shall  be  preserved,"  in  suits  at 
common  laze,  the  natural  conclusion  is,  that  this  distinction  was  present 
to  the  minds  of  the  framers  of  this  amendment.  B}-  common  laze,  they 
meant  what  the  Constitution  denominated  in  the  3d  article  "  law  ";  not 
merely  suits  w^hich  the  common  law  recognized  among  its  old  and  settled 
proceedings,  but  suits  in  which  legal  rights  were  to  be  ascertained  and  de- 
termined, in  contradistinction  to  those  where  equitable  rights  alone  were 
recognized  and  equitable  remedies  were  administered. '  This  case  is  a 
direct  authority  to  show  what,  indeed,  is  plain  without  authority,  that 
the  Constitution,  by  conferring  jurisdiction  in' '  law  and  equit}-, '  has 
not  only  recognized  the  di.stinction  between  them,  but  placed  that  dis- 


30  EFFECT   IN   ADJECTIVE    LAW. 

tinction  beyond  the  power  of  the  Legislature  to  abolish  ;  which,  as  has 
been  shown,  it  could  only  do  by  abolishing  one  or  the  other  of  the  two 
jurisdictions. " 

Influeyice  of  the  doctrine  elsewhere. 

The  earnestness  with  which  the  argument  against  the  constitution- 
ality of  the  provision  was  pressed  in  New  York  had  a  wide  influence. 
Eventualh"  the  New  York  Court  of  Appeals  and  the  courts  of  the  other 
code  states  discarded  the  doctrine,  but  not  until  it  had  produced  a 
notable  departure  from  the  general  plan  of  framing  the  codes  ;  for  in 
the  earlier  codes  of  Kentucky,  Iowa,  Minnesota,  Oregon,  Nebraska, 
Arkansas,  and  Wyoming  an  attempt  was  made  to  preserve  the  formal 
distinction  in  procedure  between  actions  at  law  and  suits  in  equity 
(See  Hepburn's  Hist.  Devel.  of  Co.  PI.  \\  93,  94,  96,  100,  102,  114,  115, 
142.)  The  distinction  still  endures  in  Kentucky,  Iowa,  Oregon,  and 
Arkansas ;  but  with  the  possible  exception  of  Oregon,  its  effect,  as 
construed  by  the  courts,  appears  to  go  little  beyond  the  customary  dis- 
tribution of  cases  between  two  trial  dockets,  for  the  jury  and  for  the 
court. 

It  is  to  be  observed  however  that  the  unconstitutionalit}'  of  an  enact- 
ment abolishing  the  historic  distinction  between  actions  at  law  and 
suits  in  equity  is  still  a  favorite  dictum  in  the  federal  courts.  Long 
after  the  contention  had  been  abandoned  in  the  code  states,  Judge  Ham- 
mond, delivering  the  opinion  in  Whittenton  Co.  v.  Memphis  Co.  (1883), 
19  Fed.  Rep.  273,  275,  thus  sums  up  the  doctrine  of  the  United  States 
Courts  on  the  point:  "In  whatever  form  the  subject  has  presented 
itself, — whether  as  a  matter  of  jurisdiction,  pleading,  or  practice,  as  to 
methods  of  relief,  defences,  review,  or  what  not, — the  supreme  and 
inferior  federal  courts  have,  with  inexorable  firmness,  insisted  upon 
preserving  the  essential  distinctions  between  law  and  equity  by  admin- 
istering them  separately,  as  required  by  the  constitution  and  laws  of 
the  United  States.  The  cases  are  far  too  numerous  for  citation  here, 
but  will  be  gathered  in  a  foot-note  for  consultation  in  support  of  this 
opinion.  They  commence  with  the  organization  of  the  courts,  and  are 
to  be  found  in  almost  every  volume  of  the  reported  decisions.  It  is  a 
distinction  that  inheres  in  the  system  by  virtue  of  constitutional  com- 
mands, and  it  will  be  found  upon  close  observation  that  the  federal  con- 
stitution has  protected  the  right  of  trial  by  jury  in  a  manner  that 
imposes  restrictions  upon  legislative  power  more  effectual,  perhaps, 
than  those  found  in  many  of  the  state  constitutions.  It  necessarily 
results  from  the  requirement  that,  in  all  controversies  of  legal  cogniz- 
ance, there  shall  be  preserved  a  right  of  trial  by  jur}-,  and  that  no  fact 
so  tried  shall  be  re-examined  in  anj'  court  otherw^ise  than  according  to 
the  rules  of  the  common  law,  that  the  original  trial  shall  be  likewise 
according  to  those  rules  in  all  essential  and  substantial  particulars. 
Merely  taking  the  verdict  of  12  men,  no  matter  how,  is  not,  in  the 
sense  of  our  federal  constitution,  a  trial  by  jury  ;  and  it  is  impractica- 


LE  ROY    V.    MARSHALL.  31 

ble,  as  well  as  impossible,  to  conduct  the  original  trial  according  to 
rules  unknown  to  the  common  law,  and  in  subversion  of  them,  and 
then,  on  re-examination  by  writ  of  error  in  an  appellate  jurisdiction,  or, 
it  may  be,  on  motion  for  new  trial,  or  otherwise,  in  the  tribunal  of  first 
instance,  to  obey  this  mandate  of  the  constitution,  and  conduct  those 
proceedings  '  according  to  the  rules  of  the  common  law  '.  Const.  U.  S. 
Amend.  7.  The  whole  proceeding,  from  beginning  to  end,  must  be,  ex 
furessitafe  rci\  a  common-law  proceeding  ;  not  necessarily  according  to 
the  precise  forms  of  the  common-law, — reformation  in  procedure  being 
open  to  legislation, — but  always  there  must  be  a  trial  substantially 
according  to  the  course  of  the  common  law. 

"Now,  this  consideration  alone  has  convinced  me,  aside  from  all 
others,  that  when  parties  bring  their  '  suits  at  common  law  '  from  a  state 
court  of  equity,  where,  by  state  legislation,  they  have  been  permitted 
to  conduct  them  under  the  forms  of  procedure  known  to  those  courts  in 
ancient  times,  into  this  court,  they  must,  in  the  nature  of  the  case,  by 
repleading,  convert  their  'bills,'  exhibits,  disclaimers,  pro  cou/cssos, 
answers,  cross-bills,  pleas,  replications,  petitions,  affidavits,  y^ra/^,  and 
the  like  into  declarations  and  pleas  according  to  the  forms  for  trials  of 
suits  at  common  law  prevailing,  not  only  in  this  court,  but  as  well  in 
the  law  courts  of  the  state  of  Tennessee.  Even  in  the  state  court  of 
equitv,  from  which  this  suit  comes,  when  a  jury  is  demanded,  as  it  may 
be,  the  trial  is  not  on  the  bill,  answer,  etc.,  but,  by  statute,  the  ])arties 
are  required  to  make  up  their  issues  in  a  separate  writing  for  the  jur\-, 
which  is,  in  effect,  what  we  require  them  to  do  here  by  repleading. 
Manifestl}',  that  method  of  sifting  out  the  issues  to  be  tried  is  not  open 
to  this  court,  and  it  can  only  be  accomplished  by  repleading. 

'•  It  matters  not  that  this  ma}-  result  in  two  or  more  separate  suits, 
with  some  at  law  and  some  in  equity.  This  comes  from  state  legisla- 
tion allowing  the  parties  to  litigate  their  several  controversies  in  one 
suit,  a  method  forbidden  to  this  court,  which  must  administer  law  and 
equity  separateh'.  If  the  parties  deem  this  an  advantage  they  should 
remain  in  the  state  court  where  it  can  be  done.  Nor  is  it  practicable  to 
have  a  different  rule  for  a  suit  which  is  removed  when  the  '  bill  '  only 
has  been  filed,  from  one  which  is  brought  here  at  some  later  stage.  It 
would  be  a  hybrid  proceeding,  producing  confusion,  if  not  disadvant- 
age, to  the  defendant,  to  allow  the  plaintiff  to  use  an  elaborate  and 
voluminous  '  bill  '  as  the  vehicle  for  his  case  and  confine  the  defendant 
to  the  simple  form  of  a  plea  at  law. " 


32  EFFECT  IN   ADJECTIVE   LAW, 


./ 


WRIGHT   r.  HOOKER. 

Court  of  Appeals  of  New  York,  April,  1854. 

[10  N.    Y.  15.] 


^^V^ 


On  April  16,  1849,  Benjamin  Isaacs  &  Co.,  of  Oswego,  New  York, 
entered  with  an  agreeruent  with  James  H.  Hooker,  of  Troy,  New  York' 
for  running  a  line  of  boats  upon  the  Erie  and  Oswego  Canals,  during 
the  navigable  season  of  1849.  No  general  partnership  name  being 
adopted,  the  business  of  the  concern  was  done  at  Oswego  in  the  name 
of  B.  Isaacs  &  Co.,  and  at  Troy  in  the  name  of  James  H.  Hooker. 
\ji  •  In  August,  1849,  B.  Isaacs  &  Co.  drew  upon  Hooker  a  bill  in  the 
*^'    following  terms  : 

$1000.  Oswego,  7th  August,  1849. 

"Thirty  days  after  date  please  pay  to  the  order  of  B.  Isaacs  &  Co.,  one 
thousand  dollars,  value  received,  and  charge  the  same  to  the  account  of  ch'gs. 

' '  To  James  H.  Hooker,  Troy,  N.  Y.  "  "  B.  Isaacs  &  Co.  " 

This  bill  was  endorsed  by  the  payees  and  discounted  by  the  plaintiff. 
B.  Isaacs  &  Co.  received  the  avails,  with  which  they  purchased  corn  on 
account  of  the  partnership,  w^hich  was  forwarded  to  and  received  and 
sold  by  Hooker,  who  refused,  however,  to  accept  the  bill.  The  plain- 
tiff brought  this  action  in  March,  1850,  against  the  Isaacs  and  Hooker 
jointly,  to  recover  the  amount  of  the  bill  or  the  money  advanced  upon 
it.  There  were  special  counts  stating  the  foregoing  facts,  but  not 
directly  charging  Hooker  as  a  drawer  of  the  bill,  and  also  counts  for 
money  lent  by  the  plaintiff  to  the  defendants.  Hooker  alone  defended  ; 
and  the  cause  was  brought  to  trial  at  the  Oswego  circuit  in  June,  1850, 
before  Mr.  Justice  Allen,  a  jury  being  waived.  The  judge  held  that 
Hooker  was  "liable  as  drawer  upon  the  bill  in  suit,"  and  on  that 
ground  gave  judgment  for  the  plaintiff  for  the  whole  amount  of  it.  The 
supreme  court  in  the  fifth  district  affirmed  this  judgment  at  general 
term,  Pratt,  J.,  delivering  the  opinion,  in  which  it  was  held  that  the 
circuit  judge  erred  in  the  ground  upon  which  his  judgment  was  based, 
but  that  the  defendant  was  liable  for  money  lent.  Hooker  appealed  to 
this  court,  and  the  cause  was  argued  here  by, 

H.  P.  Hunt,  for  the  appellant,  and 

George  F.  Co?nstock,  for  the  respondent. ' 

Edwards,  J.  ^It  is  contended,  however,  that  there  is  not  sufficient 
stated  in  the  complaint  to  authorize  the  court  to  hold  the  defendant 
Hooker  liable  as  one  of  the  drawers  of  the  bill.  The  Code  of  Procedure 
requires  that  the  complaint  shall  contain  a  statement  of  the  facts  con- 

1  The  statement  of  the  case  has  been  abridged. 

1  Part  of  the  opinion  discussing  the  business  relations  bet-ween  Hooker  and  Isaacs  &  Co.,  as 
shown  in  the  bill  of  exceptions,  is  omitted. 


UOBSON    V.    IMC  ARCH. 


33 


Btitntinjr  the  cause  of  action.  In  this  case  it  is  stated  that  all  the 
defendants  were  purchasers  ;  that  Isaacs  &  Co.  conducted  the  lousiness 
of  the  partnership  at  Oswego  in  their  names  ;  that  as  parties  they 
bought  a  large  quantity  of  corn  for  the  benefit  of  the  firm,  and  drew  a 
draft  upon  Hooker,  in  the  name  of  Isaacs  &  Co.,  for  the  firm,  which  the 
plaintiff  discounted,  and  that  Hooker  received  the  corn  purchased  by 
means  of  the  discount,  and  that  it  was  sold  and  disposed  of  by  him.  I 
think  that  these  allegations  are  sufficient  to  sustain  the  judgment  of 
the  court  that  Hooker  became  liable  as  one  of  the  drawers  of  the  bill  in 
suit.  It  is  true  that  it  would  appear  that  the  person  who  drew  the 
complaint  contemplated  that  Hooker  would  be  held  liable  in  some  other 
capacity.  But  that  is  immaterial.  The  very  object  of  the  new  system 
of  pleading  was  to  enable  the  court  to~give  Jildgment  according  to  the 
facts  stated  and  proved,  without  reference  to  the  form  used  or  to  the 
legal  conclusions  adopted  b}'  the  pleader.' 

The  Judg»ic)it  should  he  ajffirmcd. 


DOBSON  V.  PEARCE. 
Court  of  Appeals  of  New  York,  December,  1854. 

[12  N.  y.  156.] 

The  action  was  commenced  in  the  New-York  superior  court,  on  the 
26th  of  September,  1850.  The  complaint  was  upon  a  judgment  for 
$612.93,  recovered  in  that  court  in  April,  1846,  in  favor  of  one  Olney 
against  Pearce,   the  defendant  in  this   suit,    alleging   an    assignment 

1  As  bearing  on  the  change  in  this  from  the  older  system  of  pleading  see  the  remarks  of 
Edmonds  J.  in  DoUner  -■.  Gibson,  (1S50).  3  Code  Rep.  (N.  Y.)  153  :  "One  principle  that  lay 
at  the  foundation  of  our  [common  law]  system  of  pleading— and  the  system  was  as  admira- 
ble for  its  perfection  as  it  was  venerable  for  its  age— was,  that  it  was  the  legal  effect  of  facts, 
and  not  the  facts  themselves,  which  were  to  be  pleaded.  The  pleader  dicTnot  set  out  all  the 
circumstances  by  which  he  expected  to  establish  his  claim— all  his  />roba/zze  /ac/s,  as  they 
have  not  inaptly  been  termed,  but  only  the  legal  conclusion  which  was  properly  deducible 
from  them. 

For  instance— a  man  lent  his  horse  to  one  who  refused  to  return  him  on  demand.  If  the 
o-vner  sought  to  recover  him  back  specifically  in  replevin,  he  would  plead  merely  that  the 
borrower  wrongfully  detained  his  horse.  If  he  sought  to  recover  damages  in  trover,  he 
would  plead  that  he  lost  his  horse  and  the  borrower  had  found  him,  and  had  appropriated 
him  to  his  own  use  ;  and  if  he  sought  to  recover  the  value  of  his  hor.se  in  assumpsit,  he 
would  plead  that  he  had  sold  and  delivered  him. 

So  iu  an  action  against  an  endorser  of  a  promissory  note,  who  had  waived  protest,  the  ■ 
pleader  would  not  set  out  the  waiver,  but  he  would  plead  a  protest,  for  such  was  the  legal 
effect  of  the  waiver. 

So  also  on  a  sale  and  delivery  of  goods,  even  where  there  was  no  express  promise  to  pay 
for  them,  a  promise  was  also  always  pleaded,  for  that  was  the  ver>'  fcundation  of  the  action, 
and  was  the  legal  effect  of  the  fact  of  a  sale,  and  the  sale  and  delivery  were  pleaded  merely 
as  the  consideration  of  the  promise. 

So,  too,  where  a  man  did  an  act  by  another  as  his  agent,  the  act  was  always  pleaded  a.l 
the  act  of  the  principal  himself,  for  such  was  the  legal  effect  of  what  was  actually  done. 


34  EFFECT   IN   ADJECTIVE    LAW. 

thereof  from  Olney  to  Dobson,  the  plaintiff,  just  previous  to  the  com- 
mencement of  the  action. 

The  defendant  by  his  answer  alleged  that  the  judgment  was  entered 
in  a  suit  commenced  against  him,  in  favor  of  Olney,  by  the  ser^nce  of 
a  capias  upon  him  in  February,'  1846,  when  he  was  casually  in  New- 
York,  he  then  and  ever  after  having  been  a  resident  of  Connecticut ; 
that  Olnej'  had  no  just  or  legal  demand  against  him,  when  the  capias 
was  served,  and  that  he  was  induced  by  fraudvilent  representations  and 
assurances  of  Olney,  made  to  him  after  the  capias  was  served,  and  upon 
which  he  relied,  to  the  effect  that  no  further  proceedings  would  betaken 
in  the  suit,  not  to  appear  therein  ;  and  that  afterwards  Olney  fraudu- 
lently and  without  the  knowledge  of  the  defendant  procured  the 
judgment  mentioned  in  the  complaint  to  be  entered  in  the  suit  upon  a 
false  and  unfounded  claim,  and  known  so  to  be  b}'  Olney  at  the  time  ; 
that  in  1848  Olney  commenced  an  action  of  debt  on  the  judgment, 
against  the  defendant,  in  the  superior  court  of  the  State  of  Connecticut. 
Thereupon  the  defendant  commenced  a  suit  in  chancery  against  01ne3^ 
before  the  same  court  in  Connecticut,  alleging  that  the  judgment  was 
procured  to  be  entered  by  fraud  on  the  part  of  Olney,  and  pra3'ing  the 
court  to  perpetually  enjoin  him  from  further  prosecuting  it.  Olnej- 
appeared  in  and  defended  the  chancery  suit  by  attorney  ;  and  on  the 
loth  of  September,  1850,  a  decree  was  made  therein,  declaring  the  judg- 
ment fraudulent  and  perpetually  enjoining  Olney  from  further  prose- 
cuting the  action  upon  it ;  that  in  submission  to  this  decree  the  action 
upon  the  judgment  in  the  superior  court  of  Connecticut  was  discon- 
tinued ;  and  that  the  pretended  assignment  to  plaintiff  was  made  after 
the  decree  and  with  full  knowledge  of  it  and  of  the  fraud  in  procuring 
the  judgment.  The  plaintiff  replied,  denying  the  allegations  in  the 
answer. 

This  suit  was  tried  first  in  1851,  when  a  verdict  was  rendered  in  favor 
of  the  plaintiff;  this  was  set  aside  and  a  new  trial  ordered.' 

On  a  second  trial,  in  1853,  the  court  directed  the  complaint  to  be 
dismissed  ;  this  was  set  aside  and  a  third  trial  ordered.  The  third  trial 
was  had  before  Justice  Duer  and  a  jury,  in  1853.  On  this  trial  the 
plaintiff  proved  the  judgment  described  in  the  complaint,  and  the 
assignment  thereof  by  Olne}-  to  the  i)laintiff,  on  the  i  ith  of  September, 
1850,  and  rested. 

The  defendant  offered  in  evidence  a  duly  authenticated  copj-  of  the 
record  of  the  proceedings  in  the  suit  in  chancery  in  the  superior  court 
of  Connecticut,  mentioned  in  the  answer.  The  counsel  for  the  plaintiff 
objected  to  it  as  evidence ;  the  objection  was  overruled  and  the  same 
received  and  read  in  evidence,  and  plaintiff's  counsel  excepted.  From 
this  record  it  appeared  that  Pearce  commenced  a  suit  in  chancer^' 
against  Olney  in  the  superior  court  of  Connecticut,  in  1849,  and  in  the 
bill  or  petition  for  relief  he  stated  the  entry  of  the  judgment  against 

1  See  I  Duer,  142. 


DOBSON    Z\    PEARCE.  35 

him  in  the  superior  court  of  New  York,  and  alleged  that  there  was 
no  just  or  legal  demand  against  him  in  the  suit  in  which  it  was 
entered,  that  he  was  prevented  from  appearing  in  that  suit  by  the  fraud- 
ulent representations  and  assurances  of  Olney,  detailing  them,  and 
that  the  judgment  was  procured  to  be  entered  by  fraud  on  the  part  of 
Olney  ;  that  Olney  had  commenced  an  action  of  debt  against  him  on  the 
judgment  in  the  superior  court  of  Connecticut,  which  was  pending; 
and  prayed  relief.  Olney  appeared  in  and  defended  the  chancery  suit, 
by  George  Perkins,  Esq.,  an  attorney.  It  was  referred  to  a  committee 
to  hear  evidence  and  report  the  facts.  At  the  March  term  of  the  court, 
in  1850,  the  cause  was  heard  on  the  report  of  the  committee  and  objec- 
tions made  thereto  by  the  counsel  of  Olney,  and  thereupon  the  court 
at  that  term  found,  from  the  facts  stated  in  the  report  of  the  committee, 
that  the  material  allegations  in  the  bill  were  true ;  and  afterwards,  at  a 
term  of  the  court  held  on  the  second  Tuesday  of  September,  1S50,  a 
decree  was  made  by  which  the  material  facts  stated  in  the  bill  were 
declared  to  be  true,  and  Olney  was  enjoined  from  prosecuting  his  action 
of  debt  upon  the  judgment  under  a  penalty  of  one  thousand  dollars, 
and  adjudged  to  pay  the  costs  of  the  chancery  suit. 

The  counsel  for  the  defendant  read  in  evidence  a  duly  authenticated 
cop3'  of  the  record  of  the  proceedings  in  the  action  of  debt  on  the  judg- 
ment rendered  in  the  New  York  superior  court,  commenced  by  Olney 
in  the  superior  court  of  Connecticut.  To  the  admission  of  this  record 
in  evidence  the  counsel  for  the  plaintiff  duly  objected  ;  the  objection 
was  overruled  and  he  excepted.  By  this  record  it  appeared  that  the 
action  was  commenced  in  November,  1848,  and  prosecuted  by  George 
Perkins,  Esq.,  as  attorney  for  Olney  ;  that  Pearce  appeared  therein, 
and  that  on  the  Sth  of  April,  1850,  the  suit  was  discontinued  with  the 
leave  of  the  court.  The  counsel  for  the  defendant  further  proved  that 
the  judgment  mentioned  in  the  records  of  the  proceedings  in  the  suit 
at  law,  and  the  chancer}^  suit  prosecuted  in  the  superior  court  of  Connec- 
ticut, was  the  same  judgment  mentioned  in  the  complaint  herein  ;  and 
that  the  suit  at  law  as  discontinued  after  the  committee  appointed  in  the 
chancery  suit  had  reported  the  facts  to  the  court  and  notice  thereof  had 
been  serv^ed  on  the  attorney  of  Olney.  It  was  further  proved  that  the 
assignment  to  the  plaintiff  was  after  the  final  decree  in  the  chancery^ 
suit  had  been  made,  and  after  notice  of  it  to  Olney  and  the  plaintifT. 
The  justice  before  whom  the  cause  was  tried  instructed  the  jury  that 
the  record  of  the  proceedings,  finding  and  decree  of  the  superior  court 
of  Connecticut  in  the  chancery  suit,  was  conclusive  evidence  against 
the  plaintiff  to  sustain  the  allegations  in  the  defendant's  answer,  if  the 
jury  found  that  Olney  appeared  in  that  suit  by  an  attorney  who  was 
authorized  by  him  to  do  so  ;  that  if  the  jury  did  not  so  find,  then  this 
record  did  not  affect  the  plaintiff.  The  counsel  for  the  plaintiff  excepted 
to  such  instructions.     The  jury  rendered  a  verdict  in  favor  of  the  defend- 


36  EFFECT   IN   ADJECTIVE   LAW. 

ant.  The  judgment  rendered  on  this  verdict  was  affirmed  at  a  general 
term  of  the  superior  court.     The  plaintiff  appealed  to  this  ccurt. 

E.   Terry,  for  the  appellant. 

Asa  Child,  for  the  respondent. 

W.  F.  Allen,  J. — A  judgment  rendered  by  a  court  of  competent 
jurisdiction  can  not  be  impeached  collaterally  for  error  or  irregularity, 
but  is  conclusive  until  set  aside  or  reversed  by  the  same  court  or  some 
other  court  having  appellate  jurisdiction.^  The  jurisdiction  of  the 
court  in  which  a  judgment  has  been  recovered  is,  however,  always  open 
to  inquiry  ;  and  if  it  has  exceeded  its  jurisdiction,  or  has  not  acquired 
jurisdiction  of  the  parties  by  the  due  service  of  process  or  by  a  volun- 
tary appearance,  the  proceedings  are  coram  7W7i  judice  and  the  judgment 
void.  The  want  of  jurisdiction  has  always  been  held  to  be  a  valid 
defence  to  an  action  upon  the  judgment,  and  a  good  answer  to  it  when 
set  up  for  any  purpose. 

So,  fraud  and  imposition  invalidate  a  judgment,  as  they  do  all  acts ; 
and  it  is  not  without  semblance  of  authority  that  it  has  been  suggested 
that  at  law  the  fraud  may  be  alleged,  whenever  the  party  seeks  to  avail 
himself  of  the  results  of  his  own  fraudulent  conduct  by  setting  up  the 
judgment,  the  fruit  of  his  fraud. ^  But  whether  this  be  so  or  not,  it  is 
unquestionable  that  a  court  of  chancery  has  power  to  grant  relief 
against  judgments  when  obtained  by  fraud.  Any  fact  which  clearly 
proves  it  to  be  against  the  conscience  to  execute  a  judgment,  and  of 
which  the  injured  party  could  not  avail  himself  at  law,  but  was  pre- 
vented by  fraud  or  accident,  unmixed  with  any  fault  or  negligence  in 
himself  or  his  agents,  will  justify  an  interference  by  a  court  of  equity.^ 

Under  our  present  judiciary  system,  the  functions  of  the  courts  of 
common  law  and  of  chancery  are  united  in  the  same  court,  and  the  dis- 
tinctions between  actions  at  law  and  suits  in  equity,  and  the  forms  of 
all  such  actions  and  suits,  are  abolished,  and  the  defendant  may  set 
forth  by  answer  as  many  defences  as  he  may  have,  whether  they  be 
such  as  have  been  heretofore  denominated  legal  or  equitable,  or  both.* 
The  Code  also  authorizes  affirmative  relief  to  be  given  to  a  defendant 
in  an  action  by  the  judgment.^  The  intent  of  the  legislature  is  very 
clear,  that  all  controversies  respecting  the  subject  matter  of  the  litiga- 
tion should  be  determined  in  one  action,  and  the  provisions  are  adapted 
to  give  effect  to  that  intent.  Whether,  therefore,  fraud  or  imposition  in 
the  recovery  of  a  judgment  could  heretofore  have  been  alleged  against 
it  collaterally  at  law  or  not,  it  may  now  be  set  up  as  an  equitable 
defence  to  defeat  a  recovery  upon  it.     Under  the  head  of  equitable 

1  Smith  V.  Lewis,  3  J.  R.,  157  ;  Homer  v.  Field,  1  Pick.,  435. 

2  vSee  per  Thompson,  C.  J.,  in  Borden  v.  Fitch,  15  J.  R.,  121,  and  cases  cited. 

3  Reigal  V.  Wood,  i  J.  C.  R.,  402  ;  McDonald  v.  Neil.son,  2  Cow.  Rep.,  139;  Duncan  v.  Lyon, 
3J.C.R.,  351;  Marine  Ins.  Co.  of  Alexandria  v.  Hodgson,  6  Cranch,  206;  Shottenkirk  v. 
Wheeler,  3  J.  C.  R.,  275. 

4  Code,  g§  69,  150. 
6  \  274. 


DOBSON   V.    PEARCE.  37 

defences  are  included  all  matters  which  would  before  have  authorized 
an  application  to  the  court  of  chancer}-  for  relief  against  a  legal  liabil- 
itjF^but  which,  at  law  could  not  have  been  pleaded  in  bar.  The  facts  U,\'lb 
alleged  Idv  way  of  defence  in  this  action  would  have  been  good  cause 
for  relief  against  the  judgment  in  a  court  of  chancery  ;  and  under  our 
present  system  are,  therefore,  proper  matters  of  defence  ;  and  there  was 
no  necessity  or  propriety-  for  a  resort  to  a  separate  action  to  vacate  the 
judgment.  In  Connecticut,  although  law  and  equity  are  administered 
by  the  same  judges,  still  the  distinction  between  these  systems  is  pre- 
served, and  justice  is  administered  under  the  head  of  common  law  and 
chancery  jurisdiction  by  distinct  and  appropriate  forms  of  procedure  ; 
and  hence,  as  it  was  at  least  doubtful  whether  at  law  the  fraud  alleged 
would  bar  a  recovery  upon  the  judgment,  a  resort  to  the  chancery 
powers  of  the  court  of  that  state  was  proper  if  not  necessar\\ 

The  right  of  the  plaintiff  in  the  judgment  was  a  personal  right  and 
followed  his  person  ;  and,  aside  from  the  fact  that  he  had  resorted  to 
the  courts  of  Connecticut  t )  enforce  his  claim  under  the  judgment,  the 
courts  of  that  state,  having  obtained  jurisdiction  of  his  person  by  the 
due  service  of  process  within  the  state,  had  full  power  to  pronounce 
upon  the  rights  of  the  parties  in  respect  to  the  judgment  and  to  decree 
concerning  it.  It  necessarily  follows  that  the  decree  of  the  superior 
court  of  Connecticut,  sitting  as  a  court  of  chancery,  directly  upon  the 
question  of  fraud,  is  conclusive  upon  the  parties  to  that  litigation  and 
all  persons  claiming  under  them  with  notice  of  the  adjudication.  The 
judgment  of  a  court  of  competent  jurisdiction  upon  a  point  litigated 
between  the  parties,  is  conclusive  in  all  subsequent  controversies  where 
the  same  point  comes  again  in  question  between  the  same  parties.' 

In  the  State  of  Connecticut,  it  is  quite  clear  the  question  of  fraud 
would  not  be  an  open  question  between  the  parties,  but  would  be  con- 
sidered entirely-  settled  b}-  the  decree  of  the  court  of  that  state  ;  and  as 
full  faith  and  credit  are  to  be  given  by  each  state  to  the  judicial  pro- 
ceeding of  every  other  state,  that  is,  the  same  credit,  validity,  and  effect 
as  they  would  have  in  the  state  in  which  they  were  had,  the  parties 
are  concluded  in  the  courts  of  this  state  \>y  the  judgment  of  the  cotirt 
in  Connecticut  upon  the  question  in  issue.'  The  decree  of  the  court  of 
chancery  of  the  State  of  Connecticut  as  an  operative  decree,  so  far  as  it 
enjoined  and  restrained  the  parties,  had  and  has  no  extra-territorial 
efficacy,  as  an  injunction  does  not  affect  the  courts  of  this  state  ;  but 
the  judgment  of  the  court  upon  the  matters  litigated  is  conclusive  upon 
the  parties  everywhere  and  in  every  forum  where  the  same  matters  are 
drawn  in  question.  It  is  not  the  particular  relief  which  was  granted 
which  affects  the  parties  litigating  in  the  courts  of  this  state  ;  but  it  is 
the  adjudication  and  determination  of  the  facts  by  that  court,  the  final 
decision  that  the  judgment  was  procured  by  fraud,  which  is  operative 

1  White  V.  Coatsworth,  2  Seld.,  137  ;  Embury  v.  Conner,  3  Comst.,  522. 

2  Hampton  r.  JlcConnell,  3  Wheat.,  2,74. 


38  EFFECT   IN   ADJECTIVE    LAW. 

here  and  necessarily  prevents  the  plaintiff  from  asserting  any  claim 
under  it.  The  court  acquired  jurisdiction  of  the  parties  b}'  the  com- 
mencement of  the  action,  and  the  service  of  the  process  upon  the  defend- 
ant therein,  and  his  appearance  by  an  authorized  attorney  ;  and  the 
withdrawal  of  the  action  of  debt  upon  the  judgment  did  not  deprive  it 
of  jurisdiction  thus  acquired. 

The  judgment  of  the  superior  court  must  be  affirmed  with  costs. ^ 


I)-' 


PHILLIPS  :-.   GORHAM. 
.K,  »  Court  of  Appeals  of  New  York,  June,   1858. 

[17  N.   Y.  270.] 

Appeal  from  a  judgment  of  the  Supreme  Court  in  favor  of  the  plaintiff 
in  an  action  to  recover  the  possession  of  certain  land,  and  also  granting 
relief  to  the  plaintiff  on  the  ground  of  fraud  and  undue  influence  against 
a  deed  under  which  the  defendant  claimed  title. 

B.  F.  Rexford,  for  appellant. 

Albert  N.  Sheldon,  for  respondent. 

Johnson,  Ch.  J.  In  this  case  the  question  arises  whether,  in  an 
action  to  recover  specific  real  property,  the  plaintiff  may  attack  a  deed 
under  which  the  defendant  claims  title  as  well  upon  grounds  which, 
under  the  former  divided  jurisdictions  of  law  and  equit}-,  were  cogniz- 
able at  law  as  upon  grounds  which  were  properly  cognizable  in  the 
Court  of  Chancery.  It  is  contended  that  the  Legislature  does  not,  under 
the  Constitution  of  1846,  possess  the  power  to  authorize  such  a  case  to 
be  determined  in  a  single  suit.  The  provisions  relied  upon  are  sections 
3  and  10  of  article  6,  the  first  of  which  is  :  "  There  .shall  be  a  Supreme 
Court  having  general  jurisdiction  in  law  and  equity;"  and  the  other 
is:  " The  testimony  in  equity  cases  shall  be  taken  in  like  manner  as 
in  cases  at  law."  The  argument  based  upon  these  provisions  is,  that 
distinct  jurisdictions  at  law  and  equity  are  recognized,  and  that  this 

1  Johnson,  J.,  delivered  a  concurring  opinion,  and  remarked:  "Giving  to  the  plaintiff's 
objection  to  the  admission  of  the  record  the  broadest  effect,  the  first  question  is  whether 
the  defence  set  up  by  the  answer  was  available.  That  defence  is,  in  substance,  that  the 
jiidgnient  sued  upon  was  fravidulently  entered  up  after  assurances,  on  behalf  of  the  plaintiff 
in  that  suit  to  the  defendant,  that  no  further  proceedings  should  be  taken  in  it  without 
notice  to  him,  whereby  he  was  induced  not  to  take  steps  to  interpose  a  defence,  which  in 
point  of  fact  he  could  successfully  have  maintained. 

'•Relief  against  such  a  judgment,  upon  these  facts,  would  have  been  within  the  power  of 
a  court  of  equity  in  this  state,  upon  a  bill  for  that  purpose."  2  Story's  Eq.  Jur.,  g§  887,  896; 
Huggins  V.  King,  3  liarb.,  616. 

The  Code,  \  6g,  having  abolished  the  distinction  between  actions  at  law,  and  .suits  in 
equity,  and  the  forms  of  all  such  actions  as  theretofore  existed,  an  equitable  defence  to  a 
civil  action  is  now  as  available  as  a  legal  defence.  The  question  now  is,  ought  the  plaintiff 
to  recover;  and  anything  which  shows  that  he  ought  not  is  available  to  the  defendant, 
whether  it  was  formerly  of  equitable  or  legal  cognizance. 


Plinj.IPS   -'.    C'.OKHAM.  39 

recognition  imposes  upon  the  power  of  the  Legislature  the  restriction  to 
preserve  distinct  methods  or  enforcing  legal  and  equitable  rights.  The 
language  of  the  provisions  does  not,  as  it  seems  to  me,  either  directly 
or  b}-  any  implication,  lead  to  the  result  contended  for.  The  su])reme 
original  civil  jurisdiction  at  law,  was,  under  the  preceding  Constitution, 
in  the  Supreme  Court;  the  equitable  jurisdiction  was  in  the  Court  of 
Chancery.  The  new  Constitution  conferred  the  whole  jurisdiction  upon 
a  single  court.  TJie  subject  to  be  acted  upon  was  the  vesting  of  judi- 
cial authority,  not  the  regulating  of  judicial  procedure.  This  judicial 
authorit}'  had  existed  in  two  distinct  branches  and  both  are  named  with 
the  purpose  of  conferring  both  upon  the  new  Supreme  Court.  The  5th 
section  of  the  same  article  likewise  shows  that  the  Legislature  were  to 
possess  this  power.  It  declares  that  the  Legislature  shall  have  the 
same  power  to  alter  and  regulate  the  jurisdiction  and  proceedings  in 
law  and  equity  as  the}-  have  heretofore  possessed.  The  former  Consti- 
tution contained  two  clauses  limiting  the  legislative  power  on  this 
subject ;  one  was,  that  no  new  courts  should  be  created  not  proceeding 
according  to  the  course  of  the  common  law,  except  the  equity  courts 
authorized  in  the  Constitution  ;  the  other  was,  that  trial  by  jury,  in  all 
cases  in  which  it  had  been  heretofore  used,  should  remain  inviolate. 
The  latter  of  these  provisions  is  contained  in  the  present  Constitution 
and  does  take  awaj^  the  power  of  the  Legislature  to  prescribe  any  other 
than  a  jury  trial  in  cases  in  wdiich  that  mode  of  trial  was  used  at  the 
period  to  which  the  Constitution  refers.  But  there  was  nothing  in 
either  Constitution  which  prevented  the  Legislature  from  imposing  the 
necessit3'  of  the  jury  trial  in  all  cases.  Nor  is  there  any  doubt  that 
under  the  former  Constitution  the  procedure  in  equity  could  have  been 
brought  to  a  conformity  with  the  proceedings  in  the  law  courts.  The 
Legislature  might  at  any  time  have  changed  the  subpoena  to  answer 
into  a  writ  upon  the  case,  the  bill  into  a  declaration,  the  answer  into  a 
plea  in  bar,  and  have  compelled  a  trial  b}' jury  in  all  cases.  The  ques- 
tion is  not  whether  such  a  change  would  have  been  wise,  having  regard 
to  the  great  degree  of  ease  and  certainty  in  procedure  which  had  been 
attained  by  the  experience  of  many  years,  and  to  the  difficulty  of  sub- 
stituting a  new  and  untried  practice,  but  it  is  only  one  of  power,  and 
upon  that  question  no  doubt  could  have  existed. 

The  provision  as  to  the  taking  of  testimony  is,  in  substance,  only 
that  a  single  method  of  taking  testimony  should  exist.  Examiners  in 
Chancery,  and  the  old  method  of  taking  testimony  before  them,  were 
to  be  abolished,  and  one  mode  was  thereafter  to  exist  in  both  classes  of 
cases.  This  being  plainh^  the  purpose  of  the  provision,  and  the  sub- 
ject which  the  Constitution  had  in  view  in  the  section  in  question,  it 
would  comport  with  no  just  rules  of  construction  to  found  upon  the 
terms  selected  to  express  that  purpose — they  being  those  which  the 
former  practice  had  rendered  perfectly  familiar  and,  therefore,  ap]:)ro- 
priate — an  implication  so  important  n-^  that  equity  cases  and  law  cases 


40  EFFECT   IN   ADJECTIVE    LAW. 

were  always  to  be  preserv^ed  distinct  from  each  other  and  were  not  to  be 
administered  in  a  single  suit. 

If  the  Constitution  has  not  deprived  the  Legislature  of  the  power,  and 
clearly,  as  I  think,  it  has  not,  the  next  question  is  whether  the  code  of 
procedure  authorizes  a  suit  for  both  legal  and  equitable  relief.  The 
recital  which  precedes  the  detailed  provisions  of  the  code  declares  it  to 
be  expedient  "that  the  distinction  between  legal  and  equitable  reme- 
dies should  no  longer  continue,  and  that  a  uniform  course  of  proceed- 
ing, in  all  cases,  should  be  established."  Following  up  this  recital, 
section  62  enacts  that  "the  distinction  between  actions  at  law  and  suits 
in  equit}-,  and  the  forms  of  all  such  actions  and  suits  heretofore  exist- 
ing, are  abolished  ;  and  there  shall  be  in  this  state  hereafter  but  one 
form  of  action,  for  the  enforcement  or  protection  of  private  rights  and 
the  redress  of  private  wrongs,  which  shall  be  denominated  a  civil 
action."  If  no  further  provisions  were  contained  in  the  code  bearing 
upon  the  question  it  would  be  difficult  to  arrive  at  the  conclusion  that 
one  who  attempted  to  recover  a  piece  of  land  of  another,  on  an  equit- 
able and  also  on  a  legal  ground,  must  bring  a  separate  action  to  set  up 
each  ground  of  recovery.  But  the  further  provisions  bearing  upon  the 
subject  leave  no  room  to  contend  that  such  is  the  law.  So  far  as  sub- 
stance is  concerned,  a  complaint  needs  only  to  contain  facts  constituting 
a  cause  of  action,  recognizing  no  distinction  of  causes  of  action  into 
legal  or  equitable.^  Among  the  causes  of  demurrer,  the  5th  only  can 
have  reference  to  a  defect  of  the  nature  of  that  alleged  to  exist  in  this 
case  "that  several  causes  of  action  have  been  improperh'  united"' 
though  that  refers  as  I  think  to  causes  of  action  for  separate  things 
and  not  to  claims  to  a  single  thing  on  legal  and  also  on  equitable 
grounds.  But  even  if  separate  things  were  claimed  in  the  same  suit, 
one  on  legal  and  another  on  equitable  grounds,  it  would  create  no  objec- 
tion to  the  joinder  ;  for  section  167  expressly  provides  that  the  plaintiff 
may  unite  in  the  same  complaint  several  causes  of  action,  whether  they 
be  such  as  have  been  heretofore  denominated  legal  or  equitable  or  both 
where  they  arise  out  of: 

I.  The  same  transaction  or  transactions  connected  with  the  same 
subject  of  action  ;  or  : 

5.  Claims  to  recover  real  property,  with  or  without  damages,  and 
rents  and  profits. 

Either  of  these  subdivisions  is  broad  enough  for  this  case.  The  same 
policy  is  embodied  in  section  150,  which  provided  that  the  defendant 
may  set  forth  by  answer  as  many  defences  and  counter  claims  as  he  may 
have  ;  whether  they  be  such  as  have  heretofore  been  denominated  legal 
or  equitable  or  both.  Indeed  the  principle  has  been  settled  in  this 
court  that  an  equitable  defence  could  be  interposed  to  a  legal  claim^ 
and  all  the  inconvenience  which  is  alleged  as  an  argument  against  al- 
lowing legal  and  equitable  grounds  of  claims  to  be  united  in  a  complaint, 

1  3  142.  2  J144.  3  Dobson  v.  Pearce,  12  N.  V.,  156;  Crary  v.  Goodman,  id.  266. 


COLE    7\    REVN()I,DS.  41 

equally  exists  against  allowiuif  an  equitable  answer  to  a  legal  claim. 
In  truth  the  plain  answer  to  both  objections  is,  that  the  law  so  wills  it ; 
and  we  are  bound  to  believe,  at  least  to  hope,  that  the  inconvenience 
will  not  ])rove  in  practice  to  be  so  great  as  has  been  anticipated.  It  is 
objected  that  one  ground  of  claim  is  triable  by  jury  and  the  other  by 
the  court;  but  all  cases  may  legally  be  tried  by  a  jury,  so  that  this 
creates  no  insuperable  difficult}-. 

If  these  views  are  correct,  then  the  objection  is  reduced  to  one  of 
mere  variance,  and  within  the  settled  rules  on  that  subject  created  no 
bar  to  a  recover}-.  The  ground  was  clearly  understood,  no  one  was  sur- 
prised or  misled,  the  parties  went  to  trial  prepared  to  try,  and  did  try, 
the  very  question  on  which  their  rights  depended.  If  there  was  any 
defect  of  parties,  or  if  the  defendant  was  entitled  to  any  restitution,  he 
should  have  presented  his  claim  at  the  trial  and  it  would  then  have 
been,  as  we  must  presinne,  properly  disposed  of. 

The  judgment  should  be  affirmed.' 


COLE  r.  REYNOLIXS. 

Court  of  Appeals  of  New  York,  September,  1855. 

[IS  .v.   )'.  74.] 

Appeal  from  the  Supreme  Court.  The  action  was  brought  by  David 
D.  Cole  and  Lemuel  C.  Holmes.  The  complaint  averred  that  the  plain- 
tiffs and  Wightman  J.  Cole,  one  of  the  defendants,  were  co-partners 
under  the  firm  of  Coles  &  Holmes  ;  that  the  defendants  were  also 
co-partners,  doing  business  as  commission  merchants,  in  the  city  of 
New  York,  under  the  firm  of  Cole.  Stevens  &  Co,  ;  that  there  were  large 
dealings  between  the  two  firms  ;  that  the  defendants  became  and  were 
indebted  to  the  plaintiffs  and  Wightman  J.  Cole,  upon  an  account  which 
had  accrued  in  favor  of  the  firm  of  Coles  &  Holmes,  and  against  the 
firm  of  Cole,  Stevens  &  Co.,  arising,  among  other  things,  from  the 
receipt  by  the  latter  of  the  proceeds  of  property,  to  the  amount  and 
value  of  $18,005.33,  transmitted  to  them  for  sale,  on  commission,  b}^ 
the  former,  and  that  the  defendants  were  indebted  to  the  firm  of 
Coles  &  Holmes,  upon  said  account,  in  thesum  of  $2,316.45,  with  inter- 
est from  Februar}^  4,  1853,  over  and  above  all  discounts,  payments  and 
•set-offs  on  the  part  of  the  defendants.  It  further  stated  that  Wightman 
J.  Cole,  one  of  the  partners  in  both  firms,  had  refused  to  be  joined  as  a 
plaintiff"  in  the  action,  and  therefore  he  had  been  made  defendant  only.- 

1  Selden  and  Pratt,  JJ.,  dissented  ;  Comstock,  J.,  expressed  no  opinion  :  the  other  judges 
concurred.  Cf.  New  York  Ice  Company  v.  Northwestern  Insurance  Company  (iS6i),  23 
N.  Y.  357,  360,  where  Comstock,  C.  J.,  gives  the  reason  for  his  reticence  in  Phillips  7: 
Gorham. 

2  Part  of  the  reporter's  statement  of  the  case  is  omitted. 


42  EFFECT   IN    ADJECTIVE   LAW. 

Jatnes  Gibsofi,  for  the  appellants. 

Potter  &  Tanner,  for  the  respondents. 

Harris,  J. — By  the  Code,  the  distinction  between  actions  at  law  and 
suits  in  equity  is  abolished.  The  course  of  proceeding  in  both  classes 
of  cases  is  now  the  same.  Whether  the  action  depend  upon  legal  prin- 
ciples or  equitable,  it  is  still  a  civil  action,  to  be  commenced  and  pros- 
ecuted without  reference  to  this  distinction. 

But,  while  this  is  so  in  reference  to  the  form  and  course  of  proceed- 
ing in  the  action,  the  principles,  by  which  the  rights  of  the  parties 
are  to  be  determined,  remain  unchanged.  The  Code  has  given  no 
new  cause  of  action. 

In  some  cases  parties  are  allowed  to  maintain  an  action  who  could 
not  have  maintained  it  before,  but  in  no  case  can  such  an  action  be 
maintained  where  no  action  at  all  could  have  been  maintained  before 
upon  the  same  state  of  facts.  If,  under  the  former  »system,  a  given 
state  of  facts  would  have  entitled  a  party  to  a  decree  in  equity  in  his 
favor,  the  same  state  of  facts  now,  in  an  action  prosecuted  in  the  man- 
ner prescribed  by  the  Code,  will  entitle  him  to  a  judgment  to  the  same 
effect.  If  the  facts  are  such  as  that,  at  the  common  law,  the  party 
would  have  been  entitled  to  judgment,  he  will,  by  proceeding  as  the 
Code  requires,  obtain  the  same  judgment.  The  question  thertfore,  is 
whether,  in  the  case  now  under  consideration,  the  facts,  as  they  are 
assumed  to  be,  would,  before  the  adoption  of  the  Code,  have  sustained 
an  action  at  law  or  suit  in  equity. 

The  defendants'  firm  are  indebted  to  the  plaintiffs'  firm  upon  an 
account  stated  and  settled  between  them.  This  fact,  standing  alone, 
would  have  entitled  the  plaintiffs  to  maintain  an  action  at  law.  But 
there  is  another  fact  in  the  case,  which,  upon  a  technical  rule  peculiar 
to  the  common  law,  would  have  defeated  such  an  action.  One  of  the 
individuals  composing  the  plaintiffs'  firm  is  also  a  member  of  the 
defendants'  firm.  A  man  can  not  sue  himself;  and  as,  at  common  law, 
all  the  members  of  a  firm  must  unite  in  bringing  an  action,  it  follows 
that  in  such  a  case  no  action  at  law  could  be  sustained. 

But  in  equity  this  technicality  does  not  stand  in  the  way  of  justice. 
It  is  enough,  there,  that  the  proper  parties  are  before  the  court.  They 
may  be  plaintiffs  or  defendants  according  to  circumstances,  but,  being 
before  the  court,  it  will  proceed  to  pronounce  such  judgment  as  the 
facts  of  the  case  require.  This  latter  rule  is  obviously  the  dictate  of 
common  sense.  vSo  far  as  I  know,  it  prevails  everywhere  else  except 
at  the  common  law. 

Indeed,  equity,  like  the  law  of  Scotland  and  the  systems  of  conti- 
nental Europe,  goes  farther,  and  treats  the  copartnership  as  a  distinct 
existence,  having  its  own  distinct  rights  and  interests.  "In  all  such 
cases,"  vsays  Story,  "courts  of  equity  look  behind  the  form  of  the 
transactions  to  their  substance,    and   treat  the  different   firms,  for  the 


GRAIN    2'.    ALDRICH.  43 

purposes  of  substantial  justice,   exactly  as  if  they   were  composed  of 
strangers,  or  were  in  fact  corporate  companies.  "' 

There  is  no  difficulty,  therefore,  growing  out  of  the  fact  that  one  of 
the  parties  is  a  member  of  both  firms,  in  sustaining  this  action." 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with  costs 
to  abide  the  event.-' 

Judgvient  reversed  and  ?ie:u  trial  ordered. 


GRAIN  V.  ALDRICH. 

Supreme  Court  of  California.  October,  1869. 

[38   Cal.  514.] 

The  case  came  up  on  a  demurrer  to  the  complaint. 

Sanderson,  J.,  delivered  the  opinion  of  the  court:  The  plaintiffs, 
as  agents  for  the  Bank  of  British  North  America,  sue  to  recover  of  the 
defendants,  formerly  engaged  in  business  in  Honolulu,  under  the  name 
of  Aldrich,  Walker  &  Co.,  the  aggregate  sum  of  $132,236.25. 

The  complaint  contains  three  counts,  in  each  of  which  the  same 
claim  is  stated  in  different  modes.  The  facts,  however,  are,  that  the 
defendants  were  indebted  to  the  firm  of  Charles  W.  Brooks  &  Co.  in 
the  sum  of  $159,000  and  upwards  ;  that  Brooks  &  Co.  sold  and  assigned 
a  part  of  said  indebtedness,  to  wit,  the  sum  of  $44,078,  to  the  plaintiffs, 
of  which  assignment  the  defendants  had  due  notice. 

To  this  complaint  the  defendants  demur,  upon  the  ground  that  it 
does  not  state  facts  sufficient  to  constitute  a  cavise  of  action.  The 
court  below  sustained  the  demurrer,  and,  plaintiffs  having  declined  to 
amend,  final  judgment  passed  for  the  defendants.  Being  dissatisfied 
with  this  result,  the  plaintiffs  have  brought  the  case  here. 

In  support  of  the  demurrer,  it  is  argued  on  the  part  of  the  defend- 
ants that  an  assignment  of  a  part  only  of  an  entire  demand  is  void  at 
law,  unless  made  with  the  consent  or  ratification  of  the  debtor  ;  that  is 
to  say,  that  no  action  at  law  can  be  maintained  upon  such  an  assign- 
ment, unless  it  was  made  with  the  express  consent  of  the  debtor,  or 
was  subsequently  duly  ratified  by  him  ;  and  that  this  is  an  action  at 
law,  and  there  is  no  allegation  that  the  assignment  was  made  with  the 
knowledge  and  consent  of  the  debtors,  or  that  they  subsequently  rati- 
fied it. 

Leaving  out  of  view  the  practice  which  has  been  adopted  in  this 
state,  and  which  has  abolished  in  the  matter  of  procedure  and  form  all 
distinctions  between  law  and  equity,  the  position  taken  by  the  defend- 

1  I  story's  Eq.  Jur.,  §  630  ;  Story  on  Partnership,  5  235. 

2  Part  of  the  opinion  is  omitted 

3  Pratt,  J.,  dissented  ;  Selden,  J  ,  expressed  no  opinion  ;  all  the  other  judges  concurred. 


44  EFFECT   IN   ADJECTIVE    LAW. 

ants  is,  doubtless,  impregnable.  Indeed,  the  proposition  is  so  well 
settled  that  it  need  only  be  stated.  "At  laze,  the  debtor  has  a  right  to 
stand  upon  his  contract,"  said  Mr.  Justice  Story,  in  Mandeville  v. 
Welch}  To  allow  the  creditor  to  split  an  entire  claim  into  any  number 
of  fragments  he  may  choose,  would  subject  the  debtor  to  conditions  to 
which  he  never  assented,  and  involve  him  in  embarrassments  and 
responsibilities  which  he  never  contemplated.  It  has  always  been  con- 
sidered that  a  plaintiff  having  an  entire  demand,  can  not  divide  it  into 
distinct  parts  and  maintain  separate  actions  upon  each.  If  he  under- 
takes such  a  course,  a  recover}'  in  one  action  will  bar  the  others.'-  If 
he  can  not  do  this  himself,  by  parity  of  reason,  he  can  not  by  an 
assignment  enable  others  to  do  it,  either  in  his  name,  as  at  common 
law,  or,  under  the  rule  in  this  state,  in  their  own. 

This  question,  substantial!}',  was  before  us  in  a  recent  case,  involv- 
ing the  question  whether  part  of  an  entire  demand,  so  assigned,  could 
be  attached  in  the  hands  of  the  debtor,  at  the  hands  of  a  creditor  of  the 
assignee.  We  considered  that  it  could  not,  for  the  reason  that  only  the 
legal  demands  of  the  defendant  in  an  attachment  could  be  reached  by 
garnishment ;  that  is  to  say,  only  such  demands  as  the  defendant  in 
the  attachment  could  have  recovered  in  an  action  at  law,  under  the 
practice  at  common  law,  and  that  by  the  assignment  in  question  the 
defendant  in  that  case  had  acquired,  if  anything,  onlj-  a  lien  in  equity 
upon  the  fund,  which  the  plaintiff  undertook  to  reach  by  his  attach- 
ment.-' 

The  claim  put  forward  by  the  plaintiffs,  that  the  assent  of  the  defend- 
ants to  the  assignment  is  alleged  in  the  complaint,  is  without  an}- 
substantial  foundation.  The  allegation  is,  "of  which  said  assignment 
the  defendants  have  had  due  notice."  This  is  not  an  allegation  that 
the  defendants  knew  of  the  assignment  at  the  time  it  was  made,  and 
assented  to  it,  or  that  they  afterward  did  so.  It  is  merehan  allegation 
of  the  notice,  which  an  assignee  of  such  a  demand  as  that  declared  on 
is  required  to  give,  in  order  to  stop  payment  to  his  assignor,  and  thus 
secure  to  himself  the  subject  of  the  assignment. 

In  view  of  what  has  been  said,  we  must  agree  with  counsel  for 
defendants,  that  had  the  plaintiffs  gone,  under  the  English  practice, 
into  a  court  of  law,  upon  the  facts  stated  in  the  complaint,  they  could 
not  have  been  allowed  to  recover.  And  if  they  could  not  have  amended 
their  complaint  so  as  to  show  an  express  assent  to  the  assignment  l)y 
the  defendants,  they  would  have  been  finally  told  they  were  in  the 
wrong  forum.  But  under  the  system  of  practice  which  prevails  in  this 
state,  such  results  do  not  follow.  Legal  and  equitable  relief  are  admin- 
istered in  the  same  forum,  and  according  to  the  same  general  plan.  A 
party  can  not  be  sent  out  of  court,  mereh'  because  his  facts  do  not  enti- 

1  5  Wheacoii,  277. 

2  Smith  <■.  Jones,  15  John.  229;  Willanl  -'.  Sperry,  16  Id.  121  ;  Marziou  v.  Pioche,  8  Cal. 
536;  Herriter  7'.  Porter,  23  Id.  3S5. 

3  Hassie  v.  G.  I.  W.  U.  Congregation,  35  Cal.  37S. 


GRAIN    7'.    ALDRICH.  45 

tie  him  to  relief  (7/*  /aw,  or  merely  because  he  is  not  entitled  to  relief  ?« 
equity,  as  the  case  may  be.  He  can  be  sent  out  of  court  only  when, 
upon  his  facts,  he  is  entitled  to  no  relief,  either  at  law  or  in  equity.  If, 
then  upon  the  facts  .stated  in  the  complaint,  the  plaintiffs  would  have 
been  entitled  to  relief  in  equity  under  the  old  system  of  practice,  the 
ruling  of  the  court  below  was  erroneous. 

Here,  too,  we  agree  with  counsel  for  the  defendants,  that,  under  the 
English  practice,  a  Court  of  Equity  would  not  grant  the  plaintiffs 
relief,  as  the  case  now  stands  ;  not,  however,  upon  the  ground  that  the 
facts  do  not  entitle  him  to  it,  but  because  all  of  the  parties  interested  in 
the  subject-matter  are  not  before  the  court.  There  can  be  no  question 
but  that  equity  will  sustain  this  assignment,  and  take  an  account  of 
the  indebtedness  between  Brooks  &  Co.  and  the  defendants,  and  settle 
and  ascertain  the  respective  interests  of  Brooks  &  Co.  and  plaintiffs  in 
the  funds,  and  render  judgment  accordingly.  This  is  not  denied  by 
counsel  for  the  defendants.  Indeed,  that  equity  will  do  this,  is  quite 
as  well  settled  as  it  is  that  law  will  not.'  Had  the  plaintiffs  made 
Brooks  &  Co.  parties,  and  added  a  prayer  for  an  account  and  apportion- 
ment of  the  debt  due  from  the  defendants,  there  could  have  been  no 
question  as  to  their  right  to  relief.  Under  our  system  of  practice,  then, 
the  real  objection  in  this  case  is  not  a  want  oi  facts,  but  a  want  of 
parties.  The  defendants  are  entitled,  if  they  so  desire,  to  have  all  the 
parties  having  an  interest  in  the  subject-matter  before  the  court,  in 
order  that  its  judgment  shall  be  a  final  determination  of  the  whole 
matter,  and  leave  nothing  to  be  done  by  piecemeal.  But  our  .system 
makes  no  distinction  between  law  and  equity  cases,  and  if  the  defend- 
ants were  unwilling  that  this  case  should  proceed  by  piecemeal,  or 
without  the  presence  of  Brooks  &  Co.,  they  should  have  put  their 
demurrer  upon  that  ground.  Having  demurred  only  upon  the  ground 
that  the  facts  are  insufficient,  their  demurrer  should  have  been  over- 
ruled, for  the  statute  expressly  provides  that  if  no  objection  be  taken 
for  the  want  of  parties,  the  objection  shall  be  deemed  waived.  The 
defendants  were  at  liberty  to  waive  the  objection,  if  they  saw  proper  to 
do  so.  This  they  did,  by  not  taking  the  objection  in  the  appointed 
mode. 

In  conclusion,  it  is  proper  to  say  that  if,  in  the  course  of  the  subse- 
quent proceedings  in  this  case,  the  court  should  find  it  impossible  to 
completely  determine  the  controversy  between  these  parties,  without 
the  presenceof  other  parties,  the  court  may  order  them  to  be  brought  in, 
notwithstanding  the  failure  of  the  defendants  to  insist  by  demurrer 
upon  their  presence.-  fudgtnent  reversed,  and  cause  remanded. 

1  Field  V.  Mayor  of  New  York,  z  Seld.  179  ;  Pope  v.  Huth,  14  Cal.  407  :  Pierce  v.  Robinson, 
13  Id.  120. 

S  Practice  Act,  Sec.  17. 


46  EFFECT   IN   ADJECTIVE   LAW. 

EMERY  V.  PEASE. 
Court  of  Appeals  of  New  York,  September,  1859. 

[20  iV.   }'.  62.] 

Appeal  from  the  Supreme  Court.  The  complaint  set  out  an  agreement 
between  the  plaintifiF  and  the  defendant,  by  which  the  former  was  act- 
ing as  superintendent  of  a  factory,  and  was  to  receive,  in  addition  to  a 
fixed  salary,  half  the  net  profits  of  the  business.  It  was  provided  that 
net  profits  were  to  be  ascertained  by  deducting  from  the  gross  receipts 
various  enumerated  charges  and  expenses,  and  all  losses  in  the  busi- 
ness, including  bad  debts.  The  plaintiff"  was  to  keep  the  books,  and 
at  the  end  of  each  year  an  accurate  account  was  to  be  taken  of  the 
stock  and  business  of  the  factor^',  the  net  profits  were  to  be  ascertained, 
and  the  plaintiff"'s  compensation  was  to  be  paid  in  cash  or  the  defend- 
ant's notes  at  six  months.  The  plaintiff"  averred  that  he  served  as 
superintendent  one  year,  and  that  at  the  end  thereof,  with  the  knowl- 
edge and  assent  of  the  defendant,  he  made  out  an  accurate  account  and 
inventory  of  the  stock  and  business,  and  stated  an  account  of  the  net 
profits  of  the  business  according  to  the  stipulations  of  the  agreement, 
and  delivered  the  said  statement  in  writing  to  the  defendant  on  Feb- 
ruary 19,  1855,  that  he  made  no  objection,  and  that  he  now  (the  com- 
plaint was  verified  March  30,  1855)  has  the  same  in  his  possession. 
Breach,  that  defendant  refused  to  pay  half  the  net  profits  stated  in  said 
account,  which,  after  deducting  a  credit  admitted  by  the  complaint, 
amounted  to  $6,544.62.  Judgment  is  demanded  for  this  sum  with 
interest. 

The  answer  averred  that  the  entire  balance  claimed  by  the  plaintiff 
consisted  in  uncollected  demands  for  goods  sold  during  the  progress 
of  the  business  upon  terms  of  credit,  which  in  most  instances  had 
not  expired,  and  insisted  that  the  defendant  was  not  liable  to  pay  an}^ 
sum  for  net  profits  until  the  demands  outstanding  were  collected,  and 
the  losses  to  happen  from  bad  debts  deducted  therefrom. 

On  the  trial  at  the  Albany  Circuit  before  Mr.  Justice  Gould,  the 
defendant  moved  to  dismiss  the  complaint  on  the  ground  that  it  did 
not  state  facts  suflScient  to  constitute  a  cause  of  action.  The  judge 
granted  the  motion,  holding  that  the  plaintifi"  should  have  brought  his 
action  for  an  accounting.  The  plaintiff  excepted  and,  the  judgment 
against  him  having  been  affirmed  at  general  term  in  the  third  district, 
appealed  to  this  court. 

Williatn  D.   White,  fo--  appellant. 

John  H.  Reynolds,  for  the  respondent. 

CoMSTocK,  J. ^Regarding  the  suit  as  an  action  at  law  according  to 
the  distinction  between  legal  and  equitable  remedies  which   formerly 


EMivKV  :-.   rivASE.  47 

prevailed,  we  think  the  Supreme  Court  were  rig^ht  in  hohlinf!^  that  it 
could  not  he  maintained  uj^on  the  facts  averred  in  the  complaint.  The 
pleader  has  set  forth  some  matters  of  evidence  having  perhaps  a  slight 
tendency  to  prove  that  the  account  had  been  taken  and  the  balance  due 
to  the  plaintiff  ascertained  by  the  parties  according-  to  the  principles  of 
the  agreement  between  them.  But  he  seems  carefully  to  have  avoided 
the  very  conclusion  of  fact  which  alone  would  justify  a  suit  for  the 
recovery  of  an  ascertained  and  admitted  balance,  to  wit,  that  the  par- 
ties had  stated  the  account  and  that  the  statement  thus  made  showed 
there  was  due  to  the  plaintiff  the  sum  which  he  claimed  to  recover. 
The  averment  that  the  plaintiff  had  made  a  statement  and  delivered  it 
to  the  defendant  who  made  no  objections  to  it,  does  not  necessarily 
establish  the  required  conclusion  even  if  it  has  a  tendency  in  that  direc- 
tion ;  and  consequently  we  cannot  hold  that  the  fact  of  an  account 
stated  between  these  parties  has  been  pleaded  in  any  manner  or  form. 
We  are  required,  and  we  are  always  inclined,  to  give  a  liberal  and 
benign  construction  to  pleadings,  under  the  present  system  ;  but  if  a 
party  either  ignorantly  or  willfully  will  omit  the  very  fact  on  which 
his  case  depends,  and  will  content  himself  with  averring  evidence 
inconclusive  in  its  nature,  he  must  take  the  consequences  of  his  error 
if  objection  be  made  at  the  proper  time. 

But  if  an  account  of  net  profits  has  not  been  taken  according  to  the 
rule  furnished  by  the  agreement,  it  seems  to  us,  upon  the  fact  stated, 
that  the  plaintiff  is  entitled  to  such  an  account  and  then  to  recover 
whatever  sum,  if  an3-thing,  shall  appear  to  be  due  to  him.  This  is 
probably  not  the  view  in  which  the  suit  was  brought,  nor  is  it  in 
accordance  with  the  praj'er  of  the  complaint.  But  relief  is  to  be  given 
consistent  with  the  facts  stated,  although  it  be  not  the  relief  specifically 
demanded,' and  in  determining  whether  an  action  will  lie,  the  courts 
are  to  have  no  regard  to  the  old  distinction  between  legal  and  equitable 
remedies.  Those  distinctions  are  expressly-  abolished. ^  A  suit  does 
not,  as  formerly,  fail  because  the  plaintiff  has  made  a  mistake  as  to  the 
form  of  the  remedy.  If  the  case  which  he  states  entitles  him  to  any 
remedy,  either  legal  or  equitable,  his  complaint  is  not  to  be  dismissed 
because  he  has  prayed  for  a  judgment  to  which  he  is  not  entitled.  In 
this  case  the  plaintiff  was  to  be  paid  one-half  of  the  net  profits  of  a  cer- 
tain business,  to  be  ascertained  by  an  annual  accounting  in  a  particular 
manner.  His  averments  are  too  feeble  to  show  that  any  precise  sum  or 
any  sum  at  all  is  due  to  him  ;  but  we  think  they  do  show  that  he  is 
entitled  to  an  accounting  in  order  to  ascertain  whether  anything  and 
how  much  is  due.  That  being  ascertained  by  appropriate  proceedings 
in  the  action,  final  judgment  will  be  given  accordingly. 

The  judgment  must  therefore  be  reversed,  and  a  new  trial  ordered. 

All  the  judges  concurring, 

Judgmoit  reversed,  and  a  Jieic  trial  ordered. 

1  Code,  I  275.  2  Code,  \  68. 


48  EFFECT  IN   ADJECTIVE   lyAW. 


THE    NEW    YORK    ICE    COMPANY  v.  THE    NORTHWESTERN 
INSURANCE  COMPANY  OF  OSWEGO. 

Court  of  Appeals  of  New  York,  June,  1861. 

[23  N.    Y.  357.] 

The  action  was  broug^ht  on  a  policy  of  insurance  against  loss  by  fire. 
The  complaint  averred  a  claim  on  the  policy  for  the  loss,  and  it  also 
averred  facts  from  which  it  was  claimed  that  an  error  had  occurred  in 
making  out  the  policy.  It  demanded  judgment  for  the  amount  of  the 
loss,  and,  in  case  it  should  be  necessary  to  the  recoverv'  that  the  policy 
be  reformed  and  corrected,  asked  for  a  further  judgment  as  might  be 
necessary.  The  case  was  brought  to  trial,  at  special  term,  before  Mr. 
Justice  Ingraham  without  a  jury,  as  an  equity  case.  He  was  of  opinion 
that  the  mistake,  if  an}^  was  not  in  the  written  instrument,  but  a  mis- 
understanding of  the  parties,  by  which  there  was  a  want  of  concurrence 
of  minds  upon  the  conditions  of  the  contract ;  and  this  he  held  did  not 
present  a  case  for  relief. 

The  plaintiffs  then  asked  to  have  a  further  trial  as  to  their  right  to 
recover  upon  the  policy  of  insurance,  as  it  actually  stood  without  refor- 
mation. The  judge  held  this  inadmissible,  on  the  ground  that  he  had 
no  authority  to  try  the  right  of  the  plaintiff  under  the  polic}-,  without 
a  jurj',  nor  to  send  the  case  to  a  jur^-  for  a  second  trial.  He  conceded 
that  had  the  right  to  equitable  relief  been  established,  it  would  have 
been  his  duty  to  proceed  and  do  complete  justice;  but  regarding  the 
action  as  purely  an  equitable  one,  he  held  that  a  claim  for  mere  legal 
relief  could  not  be  united.  He  therefore  dismissed  the  complaint  with- 
out prejudice  to  the  right  of  the  plaintiff  to  bring  a  new  action  upon 
the  policy.  The  plaintiffs,  having  discovered  that  the  time  for  bring- 
ing an  action  was  limited  by  the  terms  of  the  policy  and  had  expired, 
made  an  application  at  special  term,  and  the  judgment  was  so  amended 
as  to  permit  him  to  "serve  a  new  complaint  at  law."  On  appeal,  the 
order  allowing  this  amendment  was  reversed,  at  general  term  in  the 
first  district,  on  the  ground  that  the  authority  of  the  court  to  amend  a 
judgment  (without  a  hearing  of  the  case)  extended  only  to  mistake  or 
omission,  and  did  not  reach  a  case  where  the  judgment  was  preciseh- 
what  it  was  intended  to  be,  and  disposed  of  the  whole  case.  The  plain- 
tiiTs  appealed  to  this  court,  and  the  defendant  moved  to  dismiss  the 
appeal. 

William  Curtis  Noycs,  for  the  motion. 

Mr.  Sherman,  opposed. 

CoMSTOCK,  Ch.  J.  —  [After  stating  the  case.]  I  confess  myself  una- 
ble to  see  why  the  plaintiffs  were  not  entitled  to  a  reformation  of  the 
contract.  The  learned  justice  who  tried  the  case,  in  the  opinion  given 
by  him,  after  referring  to  the  evidence,  observes:   "The  only  conclu- 


THE  N.  Y.  ICE  CO.  V.  THE  NORTHWESTERN  INSURANCE  CO.  49 

sion  I  can  adopt  on  this  evidence  is  that  there  was  a  mutual  mistake  as 
to  the  description  of  the  premises,  arising  from  a  misunderstanding  of 
the  parties  in  the  original  negotiation  of  the  contract,  and  that  the 
defendants'  agent  in  making  the  policy  made  it  as  he  intended  it 
should  be  when  he  agreed  to  insure  the  propert}-.  The  policy  was  made 
according  to  his  description,  entered  by  him  in  the  books  of  the  com- 
pau}-,  "  &c.  Now  if  the  misdescription  of  the  subject  of  insurance  was 
material,  and  was  entered  in  the  books  of  the  company,  and  found  its 
way  into  the  policy  in  consequence  of  a  mutual  mistake  or  misunder- 
standing of  the  parties,  it  seems  to  me  that  a  proper  case  was  made  out 
for  a  reformation  of  the  contract. 

In  the  next  place,  I  am  of  opinion  that  it  was  erroneous  to  turn  the 
plaintifFout  of  court  on  the  mere  ground  that  he  had  not  entitled  him- 
self to  the  equitable  relief  demanded,  if  there  was  enough  left  of  his 
case  to  entitle  him  to  recover  the  sum  in  which  he  was  insured.  No 
suggestion  was  made  that  the  complaint  did  not  show  a  good  cause  of 
action  for  this  money,  even  after  striking  out  all  the  allegations  and 
the  prayer  on  the  subject  of  equitable  relief.  But  because  it  contained 
those  allegations,  and  because  these  were  tried  without  a  jury  and 
tried  unsuccessfully,  the  court  refused  to  entertain  the  case  for  the 
relief  to  which  the  plaintiff  was  in  facL.entitled.  that  is  trTg^^^^TTtTif^ 
recovery''ol'  the  money  without  reforming  the  contract.  This  ruling 
proceeded  wholly  on  the  authority  ot  the  case  oTTTeubens  v.  Joel  in 
this  court,!  which  it  is  intimated  was  a  departure  from  previous  cases 
also  in  this  court.  But  this  is  a  mistake.  In  that  case  a  debtor  had 
made,  as  it  was  alleged,  a  fraudulent  assignment  of  his  property  ;  and 
a  creditor,  by  simple  contract,  commenced  a  suit  against  the  assignor 
and  assignee  praying  a  recovery  of  his  debt,  and  for  an  injunction  to 
restrain  the  alienation  of  the  properly  assigned.  The  question  in  the 
case  arose  on  demurrer,  put  in  by  the  assignee,  and  the  point  deter- 
mined in  this  court  was,  that  such  a  creditor  was  not  entitled  in  such 
a  case  to  equitable  relief  by  injunction.  We  all  thought  that  the  cred- 
itor had  no  standing  in  court,  legal  or  equitable,  as  against  the  assig- 
nee, until  after  the  judgment  against  his  debtor,  and  whatever  was 
said  beyond  this  is  to  be  taken  as  an  individual  opinion  merely.  The 
doctrine  of  the  previous  cases  ^  favorable  to  uniting  in  the  same  action 
legal  and  equitable  grounds  of  relief,  was  not  intended  to  be  disturbed  , 
and  a  case  in  this  court  of  a  later  date  has  reaffirmed  that  doctrine  in 
the  most  explicit  manner.  ^  In  this  case  the  point  was  very  distinctly 
presented,  and  it  was  decided  upon  the  fullest  consideration.  I  think 
it  proper  to  mention  that  the  reason  why  I  expressed  no  opinion  in  the 
case  was,  that  I  hesitated  in  regard  to  the  power  of  the  legislature 
under  the  constitution  to  abrogate  all  the  distinctions  between  legal 
and  equitable  actions.     That  such  was  the  expressed  intention  of  the 

113  N.  Y.,  488  (1856). 

2  Crary  v.  Goodman  (1855),  12  N.  Y.,  266;  Marquat  v.  Marquat  (1855),  12  N.  Y.,  336. 

3  Phillips  V.  Gorham  (1858),  17  N.  Y.,  270. 


50  EFFECT    IN    ADJECTIVE    LAW. 

legislature  in  the  Code  of  Procedure,  I  never  had  any  doubt.      Both  of 
these  questions  must  now  be  considered  at  rest.   .   .   .' 

But  the  enquiry  remains  whether  the  order  of  reversal,  pronounced 
at  the  general  term,  can  be  reviewed  in  this  court.  We  regret  to  find 
that  there  is  no  provision  of  law  which  authorizes  such  an  appeal. 
The  order  appealed,  from  does  not,  we  think,  "  in  effect  determine  the 
action  and  prevent  a  judgment  from  which  an  appeal  might  be  taken. '  '- 
On  the  contrar}-,  it  leaves  in  force  a  judgment  in  the  action  rendered 
upon  the  trial,  from  which  an  appeal  might  be  taken,  and,  so  far  as  we 
know,  may  still  be  taken.  The  case,  therefore,  does  not  seem  to  be 
embraced  in  any  of  the  subdivisions  of  the  nth  section  of  the  Code, 
which  is  the  onl}'  authority  for  appeals  to  this  court.  The  appeal  must 
therefore  be  dismissed,  but  without  costs. ^  Appeal  dismissed. 


'  LEONARD  1'.   ROGAN. 

^^jv"^  ^f/WsuPREME  Court  of  Wisconsin,  January  Term,  1866. 

K  [20   Wis.  540.] 

The  complaint  in  this  case  (which  was  against  Sarah  Rogan  and  her 
husband)  stated  that  the  said  Sarah,  in  1858,  employed  the  plaintiff  and 
his  then  partner,  Williams,  to  bring  an  action  to  set  aside  a  conveyance 
which  she  and  her  husband  had  made  to  the  Milwaukee  and  Watertown 
Railroad  Company',  of  certain  real  estate  which  Sarah  Rogan  owned  as 
her  separate  estate  ;  that  the  plaintiff  and  Williams,  upon  the  credit  of 
such  separate  estate,  brought  said  action  and  prosecuted  it  to  judgment 
in  her  favor ;  that  their  services  were  worth  $200  ;  that  Williams  had 
assigned  his  interest  in  the  sum  due  for  said  ser\'ice,  to  the  plaintiff; 
that  Sarah  Rogan  still  owned,  as  her  separate  propert}-,  certain  real 
estate  (particularly  described)  ;  and  that  notwithstanding  the  benefit 
derived  by  her  from  said  services,  she  had  refused  to  pay  therefor. 
Demand  of  judgment  that  the  separate  estate  of  Sarah  Rogan  be 
charged  with  the  payment  of  the  plaintiff's  claim  ;  that  the  court  give 
such  direction  as  it  might  deem  just,  as  to  the  application  of  said  sep- 
arate estate  to  such  payment ;  and  for  general  relief.  The  answer  of 
the  defendant  Sarah  denied  the  material  allegations  of  the  complaint, 
and  alleged  that  said  action  was  brought  at  the  instance  of  her  hus- 
band, for  his  own  benefit,  and  that  he  received  the  avails  of  the  liti- 
gation. 

1  A  part  of  the  opinion,  on  another  point,  is  omitted. 

"■  Code,  ?  II,  sub.  2. 

3Cf.  Rockwell  V.  Carpenter  (1S81),  25  Hun,  529,  552;  see  also  Lattin  v.  McCarty  (1869),  41 
N.  Y.,  Ill,  112;  Welles  v.  Yates  (1S71),  44  N.  Y.,  525,  531;  Maher  v.  Hibernia  Insurance  Co- 
(1876),  67  N.  Y.,  283,  292;  Nichols  v.  Drew  (1880),  19  Hun,  490,  493. 


LEONARD    V.    ROGAN.  51 

The  court  found  that  the  plaintiff  and  Williams  were  employed  to 
bring  said  action  liy  the  defendants  Sarah  and  her  husband  jointly,  and 
that  the  other  facts  were  as  stated  in  the  complaint.  The  jud.i;ment 
was,  that  certain  described  real  estate,  which  was  the  separate  pn^perty 
of  Sarah  Rogan  at  the  commencement  of  the  action,  or  so  much  thereof 
as  might  be  necessary,  should  be  sold  at  public  sale  by  a  referee,  with 
the  usual  directions  that  the  plaintiff's  claim  be  j^aid  out  of  the  pro- 
ceeds, and  that  the  purchaser  be  let  into  possession.  Sarah  Rogan 
appealed. 

Enos  &  Hall,  for  the  appellant. 

/.  A.  Lovely,  for  respondent. 

Dixon,  C.  J. — It  was  insisted  in  argument  by  the  counsel  for  the 
appellant,  Mrs.  Rogan,  that  the  proofs  show  that  Williams  &  Leonard 
were  employed  by  Mr.  Rogan  alone,  or  at  least  that  it  was  a  joint 
employment  on  the  part  of  both  Mr.  and  Mrs.  Rogan.  We  have  exam- 
ined the  evidence,  and  are  satisfied  of  the  correctness  of  the  finding  of 
the  court  below  upon  this  point — that  Williams  &  Leonard  commenced 
the  action  at  the  request  of  Mrs.  Rogan  as  well  as  that  of  her  husband, 
and  rendered  their  services  as  attorneys  in  the  action  upon  the  faith 
and  credit  of  Mrs.  Rogan 's  separate  estate. 

It  was  furthermore  insisted  by  the  same  counsel,  that  if  such  was 
the  contract,  the  action  should  have  been  against  Mrs.  Rogan  at  law, 
and  not  in  equity,  and  that  this  suit  must  be  dismissed.  We  agree 
with  the  counsel  in  the  first  part  of  this  proposition.  We  think  the 
contract  is  one  which  is  obligatory  upon  Mrs.  Rogan  at  law,  within 
the  doctrine  of  Co)ni.'ay  v.  Smith,  13  Wis.,  125,  and  Todd  v.  Lee,  15 
Wis.,  365.  It  would  .seem  to  be  not  only  more  convenient  but  espe- 
cially necessary  to  the  proper  use  and  enjoyment  of  her  separate 
estate,  that  a  married  woman  having  such  estate  should  have  power  to 
contract  with  an  attorney  for  his  services  in  order  to  reduce  the  same 
or  any  part  of  it  to  her  possession,  whenever  it  is  wrongfully  withheld 
by  another.  It  would  also  seem  to  be  one  of  the  essential  attributes  of 
the  unqualified  dominion  given  by  statute  to  a  married  woman  over 
her  separate  estate,  not  only  that  she  should  be  capable  of  entering 
into  a  contract  of  this  nature  with  reference  to  such  estate,  but  that 
such  contract  should  be  binding  at  law.     We  think  that  it  is. 

But  upon  the  other  branch  of  the  proposition,  we  do  not  agree  with 
the  counsel.  It  by  no  means  follows,  because  the  plaintiffhas  demanded 
relief  in  equity  when  he  should  have  asked  a  judgment  at  law  for  dam- 
ages, that  his  action  must  be  dismissed.  Judgment  at  law  and  relief 
in  equity  are  now  granted  by  the  same  judicial  tribunals.  The  old 
distinction  between  legal  and  equitable  remedies  is  abolished,  and  the 
forms  of  pleadings  m  all  civil  actions  in  courts  of  record  are  now  the 
sanie.^  Except  in  cases  where  there  is  no  answer,  the  plaintiff  is  enti- 
tled to  any  relief  consistent  with  the  case  made  by  the  complaint  and 

1  R.  S  .  ch.  125,  sec.  I. 


52  EFFECT   IN   ADJECTIVE    LAW. 

embraced  within  the  issue,  although  it  be  not  the  relief  specificall}' 
demanded.  1 

If  the  plaintiff  demands  relief  in  equity,  when,  upon  the  facts  stated, 
he  is  only  entitled  to  a  judgment  at  law,  or  vice  versa,  his  action  does 
not,  as  formerly,  fail  because  of  the  mistake.  He  may  still  have  judg- 
ment appropriate  to  the  case  made  by  the  complaint.  This  is  going, 
perhaps,  somewhat  further  than  this  court  has  heretofore  been  required 
to  go,  but  it  is  no  doubt  in  strict  accordance  with  the  letter  and  spirit 
of  the  statutes  referred  to,  and  in  harmony  with  the  opinion  of  the 
highest  court  in  the  state  of  New  York  upon  the  same  statutes,  our 
legislature  having  borrowed  the  provisions  from  that  state." 


LATTiN  V.  Mccarty. 

J  Court  of  Appeals  of  New  York,  September,  1S69. 

^  V^^^^A-' '  [41   ^V.   Y.  107.] 

"^  Appeal   by  the  plaintiff  from  the  judgment  of  the  General  Term  of 

the  Supreme  Court  in  the  fifth  district,  afiirming  a  judgment  of  the 
Special  Term  sustaining  a  demurrer  to  the  complaint.  The  demurrer 
was  at  first  stricken  out  as  frivolous  at  Special  Term  in  the  seventh 
district ;  but  on  appeal  to  the  General  Term,  this  was  reversed, ^  and 
the  demurrer  was  then  argued  at  the  Special  Term  in  the  fifth  district, 
with  the  result  already  stated. 

A  deed  of  certain  premises  in  the  city  of  Auburn  was  executed  by 
E.  Corning  to  the  defendant,  Michael  McCarty,  at  the  request  of  Stan- 
ford, who  had  purchased  the  premises  of  McCarty,  and  for  the  sole 
purpoi^e  of  completing  his  (Stanford's)  chain  of  title.  This  deed  was 
delivered  to  Stanford  (and  never  to  McCarty),  with  that  intent,  and  by 
Stanford  was  deposited  for  record  in  the  clerk's  office.  At  thij  time 
Stanford  had  mortgaged  to  Fitch  &  Griswold,  who  had  foreclosed  and 
conveyed  to  Lattin,  the  plaintiif ;  and  the  latter  had  repaired  the  prem- 
ises and  put  in  a  tenant.  Hearing  that  there  was  a  deed  from  Corning 
to  him,  recorded  in  the  office,  McCarty  went  to  the  tenant  and  bribed 
him  to  leave,  took  possession  himself,  and  now  holds  adversely  to 
plaintiff",  claiming  to  own  the  premises  by  virtue  of  this  deed.  McCar- 
ty's  former  interest  in  the  premises  was  under  a  contract  from  Corning 
to  him ;  and  in  selling  out  to  Stanford  he  had  only  assigned  thi  con 
tract,  and  Stanford,  thinking  McCarty  had  deeded  to  him,  originated 
the  mistake  in  getting  and  recording  a  deed  from  Corning  to  McCarty. 
These  facts  were  set  up  in  detail  in  the  complaint. 

1  R.  S.,  ch.  132,  sec,  29;  Emery  v.  Pease,  20  N.  Y..  64. 

2  A  part  of  the  opinion,  considering  another  question,  is  omitted. 

3  17  How.  Pr.,  140 


LATTIN    V.    M'cARTY.  53 

The  relief  asked  for  by  plaintiff  is  : 

ist.     Possession. 

2nd.  A  conveyance  of  McCarty's  apparent  title,  by  quit  claim  or 
otherwise.  &c.,  and  that  he  be  forever  barred  from  setting  up  or  assert- 
ing his  pretended  title. 

McCarty's  demurrer  is  on  the  ground  : 

ist.  That  the  complaint  does  not  set  out  facts  sufficient  to  constitute 
a  cause  of  action. 

2d.     That  there  is  a  defect  of  parties  defendants. 

3d.  That  several  separate  and  distinct  causes  of  action  have  been 
improperly  united. 

The  case  below  is  reported  in  17  How.  Pr. ,  240.' 
Samuel  Hand  and  James  R.  Cox,  for  the  appellant. ^ 
John  T.  Pingree,  for  the  respondent. 

Hunt,  Ch.  J. — The  demurrer  of  the  defendant,  McCarty,  was  sus- 
tained, on  the  ground  that  inconsistent  causes  of  action  were  included 
in  the  complaint.     This  decision  was  erroneous. 

1.  The  complaint  contains  but  a  single  cause  of  action,  to  wit :  For 
relief  against  the  deed  under  which  McCarty  fraudulently  obtained  pos- 
session. It  is  quite  true  that  while  the  purpose  of  the  complaint  is 
single,  it  seeks  to  accomplish  that  result  bj'  several  operations.  It 
seeks  to  hgyp  the..i'raud^»k«t-4e&d_set -.aside,  and  when  that  is  done,  TE" 
will  follow  that  the  plaintiff  shall  be  awarded  the  possession  "of  the 
prop&rty. "^he  first  is  a  means  simply  of  obtaining  the  second.  The 
one'is  the  cause  of  action  ;  the  other  is  the  fruit  of  the  action.  It  is 
said  that  the  two  causes  of  action  are  :  first,  to  vacate  the  fraudulent 
deed,  and  second,  an  action  of  ejectment  to  obtain  the  possession  of  the 
premises.  Not  so.  The  plaintiflF  has  no  legal  title  to  the  premises, 
and  admits  that  he  cannot  sustain  an  action  of  ejectment,  for  that  rea- 
son. His  cause  of  action  is  simply  to  vacate  the  deed.  If  that  is  done, 
he  insists,  as  a  result,  that  the  court  will  at  once  award  him  the  pos- 
session of  the  property.  It  would  be  unreasonable,  he  argues,  to 
compel  him  to  resort  to  another  action  to  obtain  that  to  which  he  is 
clearly  entitled,  and  which  the  court  may  award  in  the  action  before  it. 

I  think  the  reasoning  is  sound. 

2.  Assuming  that  the  complaint  does  contain  the  two  causes  of 
action  as  insisted,  the  judgment  was  still  erroneous.  The  argument 
principally  relied  upon  to  sustain  the  demurrer,  is  this,  that  the  two 
causes  of  action  are  of  different  characters  ;  one,  an  action  of  ejectment, 
being  an  action  at  law,  the  other  an  action  to  set  aside  a  deed  as  fraud- 
ulent, and  of  an  equitable  nature  ;  that  the  latter  may  be  tried  by  the 
court,  while  in  the  former,  the  party  is  entitled  to  have  his  case  passed 
upon  by  a  jur3\     The  codifiers  labored  assiduously  to  anticipate  and  to 

18  Abb.,  223. 

2  Appellant  cited  Phillips  v.  Gorham,  17  N.  Y.  271;  N.  H.  R.  R.  v.  Schuyler,  17  N.  Y.,  592 
Dobsoii  V.  Pearce,  12  N.  Y.,  165;  Crary  v.  Goodman,  12  N.  Y.,  268;  Bidwell  v.  Aster  Ins.  Co., 
16  N.  Y.  267;  Laub  v.  Buckmiller,  17  N.  Y..  627;  Reuben  v.  Joel,  3  Kern,  4S8. 


54  EFFECT   IN    ADJECTIVE   LAW. 

overrule  this  objection.  They  recited  in  the  preface  to  the  Code,  that 
"  it  is  expedient  that  the  present  forms  of  actions  and  pleadings,  in 
cases  at  common  law,  should  be  abolished  ;  that  the  distinction  between 
legal  and  equitable  proceedings,  should  no  longer  continue  ;  and  that 
an  uniform  course  of  proceeding  in  all  cases  should  be  established." 
In  section  69  (original  section  62),  it  is  further  enacted  that  "the  dis- 
tinction between  actions  at  law  and  suits  in  equit3%  and  the  forms  of 
all  such  actions  and  suits  heretofore  existing,  are  abolished  ;  and  there 
shall  be  in  this  state,  hereafter,  but  one  form  of  action  for  the  enforce- 
ment or  protection  of  private  rights  and  the  redress  of  private  wrongs, 
which  shall  be  denominated  a  civil  action."  And  in  section  167,  it  is 
provided,  "  that  the  plaintiff  may  unite  in  the  same  complaint  several 
causes  of  action,  whether  they  be  such  as  have  been  heretofore  denom- 
inated legal  or  equitable,  or  both,"  under  the  conditions  therein 
specified.  In  these  provisions  and  in  others,  the  distinction  between 
legal  and  equitable  causes  of  action,  is  recognized.  There  is  no  attempt 
to  abolish  this  distinction,  which  would  be  quite  unavailing.  The 
attempt  is  to  abolish  the  distinction  between  the  forms  of  action  and 
the  modes  of  proceeding  in  the  several  cases.  The  difficulty  imder  con- 
sideration has  also  been  expressly  overruled  in  this  court,  in  the  cases 
that  I  shall  presently  cite. 

The  case  of  Phillips  v.  Gorham,  17  N.  Y.,  270,  is  an  authority  in 
favor  of  the  plaintiff.  It  was  there  held  that  in  an  action  to  recover 
specific  real  property,  the  plaintiff  ma}'  attack  a  deed  under  which  the 
defendant  claims  title,  as  well  upon  grounds  cognizable  at  law,  as  upon 
those  cognizable  in  a  court  of  chancery,  and  that  such  proceedings  can 
be  had  and  heard  in  a  single  suit.  This  conclusion  was  reached  after 
an  able  and  learned  opinion  by  Johnson,  chief  judge,  in  which  both  the 
provisions  of  the  Constitution  and  the  Code  are  fully  considered. 

In  Laub  v.  Bzick7nillcr,  i-j  N.  Y.,  626,  Roosevelt,  J.,  in  delivering  the 
opinion  of  the  court,  says  :  "I  shall  assume,  as  has  been  several  times 
decided,  that  legal  and  equitable  relief  may  be  asked  for  in  one  action, 
and  that  the  plaintiff  claiming  under  a  defective  deed,  and  showing 
sufficient  grounds  for  its  reform,  may  have  the  same  remedy  as  if  he 
had  brought  two  actions,  one  to  reform  the  instrument,  the  other  to 
enforce  it  as  reformed.  " 

Bidwell  V.  The  Astor  Mutual  Ins.  Co.,  16  N.  Y.,  263,  was  an  action  to 
reform  a  policy  of  insurance,  and  to  recover  damages  for  the  breach  of 
the  contract  so  reformed  in  the  same  action.  On  the  proposition  that 
an  action  should  be  brought  to  reform  the  policy,  and  that  a  separate 
action  should  be  brought  to  recover  the  damages,  the  court  says : 
' '  There  was  nothing  in  the  objection  that  the  court  should  have  stopped 
with  reforming  the  policy,  and  turned  the  plaintiff  over  to  a  new  action 
to  recover  their  dama:^es.     The  rule  of  courts  of  equity  was,  when  they 


WHITE    Z'.    LYONS.  55 

had  acquired  jurisdiction  and  had  the  whole  merits  before  them,  to  pro- 
ceed and  do  complete  justice  between  the  parties.  "  '     (Page  267.) 

I  can  find  no  countenance  for  this  demurrer  in  the  allegation  that  the 
causes  of  action,  assuming  that  there  are  two,  are  improperly  united  in 
the  same  complaint.'  The  rejoinder  of  several  causes  of  action  is 
expressly  authorized,  whether  legal  or  equitable  in  their  character,  or 
both,  where  they  both  arise  out  of  the  same  transaction,  or  transactions 
connected  with  the  same  subject  of  action.''  Such  is  the  pre.sent  case. 
The  transaction  is  one  out  of  which  both  causes  of  action  arise.  By 
the  agreement  between  the  plaintiff  and  McCarty,  the  former  was 
entitled  to  the  deed  from  Mr.  Corning  of  the  premises  in  question.  By 
the  error  of  the  plaintiff  and  the  fraud  of  McCarty  the  latter  obtained 
the  deed  himself.  The  plaintiff  now  seeks  to  have  the  title  transferred 
to  himself  through  a  correction  of  these  wrongs.  Both  claims  are 
harmonious  and  consistent  with  each  other.  They  arise  out  of  the 
same  transaction,  or  certainly  out  of  transactions  connected  with  the 
same  subject  of  action. 

Judgment  of  the  General  and  Special  Term  should  be  reversed. ^ 

//  the  judges  concurring,  judgment  reversed. 


WHITE  V.  LYONS. 

Supreme  Court  of  California,  October,   187 i. 

[42  Cat.  279.] 

The  complaint  in  this  case,  after  setting  forth  facts  entitling  him  to 
judgment  at  law  against  the  defendant,  prayed  for  an  accounting  that 
defendant  might  be  adjudged  to  pay  to  plaintiff,  in  gold  coin,  what 
might  appear  on  such  accounting  to  be  due,  and  for  general  relief.  To 
this  defendant  demurred,  on  the  ground  that  it  did  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action.  The  demurrer  being  overruled 
and  an  answer  put  in,  there  was  a  trial  before  the  court,  and  a  judg- 
ment rendered  on  November  i8th,  1868,  in  favor  of  plaintiflF,  for  the 
sum  of  $1613.70  with  interest  at  the  rate  of  ten  per  cent  per  annum  on 
$913.70  thereof  from  November  i8th,  1863,  and  on  $700.00  thereof  from 
July  ist,  1864 — in  all  $2376.00,  in  gold  coin — the  judgment  to  draw 
interest  at  sevrn  per  cent  per  annum.  Findings  were  filed  sustaining 
the  judgment.  The  defendant  moved  for  a  new  trial,  which  was 
denied,  and  he  then  took  this  appeal  from  the  judgment. 

1  A  part  of  the  opinion,  quoting  from  New  York  Ice  Co.  v.  Northwestern  Ins.  Co.  (iS8i). 
23  N.  Y.,  357;  360.  is  omitted. 

2  Section  144. 

3  Section  1^7- 

4  Daniels  J  ,  also  read  an  opinion  for  reversal. 


56  EFFECT   IN   ADJECTIVE    LAW. 

Hall  &  Montgomoy  and  5.  /'.  Scantker,  for  appellant. 

J.  H.  Budd,  for  respondent. 

By  the  Court,  Crockett,  J. — The  demurrer  to  the  complaint  was 
properly  overruled.  Under  the  code  there  is  but  one  form  of  action  in 
this  state,  and  if  the  complaint  states  facts  which  entitle  the  plaintiff 
to  relief,  either  legal  or  equitable,  it  is  not  demurrable  on  the  ground 
that  it  does  not  state  facts  sufficient  to  constitute  a  cause  of  action.  If 
the  facts  stated  are  such  as  to  address  themselves  to  the  equity  side  of 
the  court,  the  appropriate  relief  will  be  granted  by  the  court,  sitting  as 
a  court  of  equity.  On  the  other  hand,  if  the  facts  alleged  are  purely 
cognizable  in  a  court  of  law,  the  proper  relief  will  be  administered  in 
that  form  of  proceeding.  But  a  complaint  which  states  a  sufficient 
cause  of  action,  either  at  law  or  in  equity,  is  not  demurrable  as  not 
stating  facts  sufficient  to  constitute  a  cause  of  action.  In  this  case  the 
defendant  does  not  question  the  sufficiency  of  the  facts  alleged  to  con- 
stitute a  cause  of  action  in  a  proceeding  at  law,  but  insists  that  this 
complaint  is  a  bill  in  equity,  and  that  a  court  of  equity  has  no  juris- 
diction of  the  case.  In  that  event,  the  court  will  treat  it  as  an  action 
at  law,  and  administer  the  proper  relief  in  that  form  of  proceeding.' 


RICKETTS  V.   DORREL. 

Supreme  Court  of  Indiana,  November  Term,  1876 

[55  //id.  470.] 

From  the  Ohio  Circuit  Court. 

Jf.   \V.  Harrington,  for  appellant. 

D.   T.  Downey  and  A.  C.  Downey,  for  appellee. 

Biddle,  J. — Replevin  commenced  before  a  justice  of  the  peace.  The 
cause  of  action  is  stated  as  follows  : 

"William  Dorrel,  being  duly  sworn,  says  that  his  personal  property,  consist- 
ing of  seven  hundred  and  thirty-eight  rails  of  walnut  and  oak  wood,  of  the  value 
of  fifteen  dollars,  and  one  hundred  and  sixty-four  stakes  of  oak  and  walnut  wood, 
of  the  value  of  five  dollars,  have  been  wrongfully  taken  and  are  unlawfully  de- 
tained by  James  C.  Ricketts ;  that  said  personal  property  has  not  been  taken  by 
virtue  of  any  execution  or  other  writ  against  him,  and  that  he  has  sustained  dam- 
ages, by  said  wrongful  taking  and  unlawful  detention,  in  the  sura  of  twenty-five 
dollars, "  etc. 

Before  the  justice  of  the  peace,  the  appellant  moved  the  court  to  dis- 
miss the  action  and  quash  the  writ  of  replevin.  His  motion  was  over- 
ruled. Answer,  general  denial  and  two  special  paragraphs.  During 
the  trial  before  the  justice,  "it  appeared  to  the  court  that  the  title  to 
land  was  under  dispute,"  and  he  thereupon  certified  the  case  to  the 
Ohio  circuit  court.     The  parties  in  the  circuit  court  appeared  to  the 

1  Only  so  much  of  tlie  opinion  is  piven  as  rciates  to  the  one  point. 


RICKETTS    7'.     DORRRL.  57 

action,  and  the  appellant,  without  taking  any  exception  to  the  mode 
in  wliich  the  case  had  been  certified  np,  moved  to  dismiss  the  action. 
His  motion  was  overruled,  and  exceptions  reserved.  Trial  by  jury, 
general  verdict  for  appellee,  and  for  five  dollars  damages,  with  answers 
to  special  interrogatories  as  follows  : 

"I.  Is  William  Dorrel  the  owner  and  entitled  to  the  possession  of 
the  rails  and  stakes  described  in  the  complaint  ? 

"  Answer.     Yes." 

"  2.  Was  Dorrel  the  owner  of  the  east  half  of  the  line  fence  between 
him  and  Ricketts,  before  the  same  was  removed  by  Ricketts  ? 

"Answer.     Yes." 

"3  Did  the  rails  and  the  stakes  in  the  complaint  named,  at  the 
time  when  this  suit  was  brought,  and  when  seized  by  virtue  of  the 
writ  of  replevin  herein,  form  a  part  of  a  partition  fence,  dividing  the 
lands  of  Dorrel  and  Ricketts  ? 

"Answer.     Yes. 

"4.  At  the  time  this  suit  was  brought,  and  when  they  were  seized 
by  virtue  of  the  writ  of  replevin  herein,  did  they  form  a  part  of,  and 
were  they  connected  with,  a  standing  fence  ? 

"Answer,     Yes." 

The  appellant  moves  "  the  court,  upon  his  written  motion,  now  filed, 
for  a  judgment  on  the  special  findings  of  the  jury  herein.  " 

These  proceedings  were  had  at  the  January  term  of  the  court,  1875. 
At  the  March  term  of  the  court,  1875,  the  motion  for  judgment  on  the 
special  findings  was  overruled,  and  exceptions  reserved.  No  applica- 
tion or  motion  for  a  new  trial,  upon  written  causes  filed,  was  made  at 
the  term  the  verdict  was  rendered.  No  question,  therefore,  which 
arises  under  a  motion  for  a  new  trial,  is  presented  in  the  record.' 

In  support  of  the  motion  for  a  judgment  on  the  special  findings,  it  is 
insisted  that  they  show  the  rails  and  stakes  replevied  to  have  been,  at 
the  time,  erected  into  a  fence,  and  remaining  a  part  thereof;  and  that 
the  fence,  being  a  part  of  the  realty,  and  owned  by  the  parties  as  ten- 
ants in  common,  can  not  be  replevied  as  personal  goods. 

The  special  findings  in  this  case  plainly  show  that  the  rails  and 
stakes  replevied,  at  the  time  the  suit  was  commenced,  and  when  they 
were  taken  by  virtue  of  the  writ,  constituted  a  part  of  a  standing  fence, 
and  were  therefore,  a  part  of  the  realty.  We  are  of  the  opinion  that 
they  were  not  "personal  goods  "  in  the  true  meaning  of  the  statute 
authorizing  replevin,-  and,  therefore,  not  subject  to  be  replevied,  even 
admitting  that  they  were  wrongfully  taken  and  wrongfully  detained, 
and  wrongfully  put  in  the  fence,  by  the  appellant.  If  a  person  wrong- 
fully took  and  detained  shingles,  and  nailed  them  on  his  roof  or 
wrongfully  took  and  detained  brick,  and  laid  them  in  a  wall,  it  would 

1  Knitz  V.  Craig,  53  Ind.  561  ;  Griesel   v.  vSchmal,   55   Ind.   473 ;    Sherlock   r.   The   First 
National  Bank,  etc.,  53  Ind.  73;  Marshall  v.  Beeber.  53  Ind.  83. 
*  2  R,  S.  1876,  p.  623,  see  71. 


58  EFFECT   IN   ADJECTIVE    LAW. 

be  a  mischievous  and  unsafe  rule  to  allow  the  owuei  to  replevy  them, 
even  though  his  rights  were  greatly  outraged.  There  are  other  reme- 
dies to  redress  a  wrong  of  this  kind  ;  and  in  laying  down  the  present 
rule  as  law,  we  deny  the  party  no  right,  but  simply  refuse  him  a  rem- 
edy by  replevin.  In  the  present  case,  if  the  appellee  has  suffered  a 
wrong,  we  think  he  has  mistaken  his  remedy  to  redress  it. 

The  judgment  is  reversed,  with  costs.  Cause  remanded  for  further 
proceedings. 

ON   PETITION   FOR   A    HEARING. 

BiDDLE,  J. — The  earnestness  of  the  petition  for  a  rehearing  in  this 
case  convinces  us  of  the  sincerity  of  the  petitioner,  but  it  seems  to  us 
that  he  has  misconceived  the  scope  of  the  opinion  pronounced.  He 
labors  to  convince  us  that  when  a  tree  is  wrongfully  converted  into 
rails,  they  ma^-  be  replevied  ;  that  when  timber  is  wrongfully  cut  and 
converted  into  coal,  the  coal  ma}-  be  replevied  ;  and  he  cites  other  similar 
cases.  The  opinion  nowhere  controverts  these  propositions.  When  an 
article  is  made  personal  property  by  being  severed  from  the  realty  to 
which  it  first  belonged,  it  may  be  replevied  as  long  as  its  separate 
identity  can  be  ascertained,  whatever  shape  it  may  take  ;  but  when  an 
article  of  personal  property,  though  wrongfully  taken,  has  become  real 
estate  by  being  attached  to  the  realty,  it  can  not  be  replevied,  because  it 
has  lost  its  separate  identity,  and  its  character  as  personal  property. 
To  apply  these  principles  to  the  present  case  : — If  rails  are  wrongfully 
taken  from  a  fence,  they  become  personal  property  and  ma^^  be  replevied 
by  the  owner;  but  if  rails  are  wrongfully  taken  and  put  into  a  fence, 
and  thus  made  a  part  of  the  realty,  they  can  not  be  replevied,  because  they 
have  lost  their  separate  identity,  andean  not  be  delivered  without  detach- 
ing them  from  the  realty,  of  which  they  have  become  a  part.  And  this  is 
precisely  the  case  we  are  considering.  We  have  examined  the  authorities 
cited  by  the  petitioner,  and,  as  we  read  them,  all  the  cases  in  replevin 
are  against  the  petitioner.  In  Davis  v.  Easley,  13  111.  192,  it  is  held, 
that  a  party  may  maintain  replevin  for  boards  made  from  trees  wrong- 
fully cut  on  his  land  ;  and  also  held  that  the  owner  of  personal  prop- 
erty, wrongfully  taken,  may  replevy  it  so  long  as  it  can  be  identified, 
unless  it  is  annexed  to  or  made  a  part  of  some  other  thing  which  is  the 
principal,  as  timber  converted  into  a  house,  grain  converted  into  malt, 
or  coin  converted  into  a  cup. 

The  appellee  labors  hard,  and  cites  many  authorities,  to  show  us  that 
a  wrong-doer  can  not  obtain  any  title  in  the  property  he  wrongfully 
takes,  as  against  the  owner — a  proposition  nowhere  disputed  ;  but  it  does 
not  follow  that  the  action  of  replevin  will  lie  in  all  cases,  merely  because 
the  owner  has  not  lost  the  title  to  his  property.  Nor  will  our  statute 
abolishing  the  distinction  between  the  forms  of  actions  aid  the  appellee. 
The  legislature  can  not  abolish  the  distinction  between  personal  and 
real  actions,  nor  between  actions  to  enforce  a  specific  performance  of  a 
contract  or  recover  a  specific  article,   and  those  which  seek  merely  a 


M'GONIOLE    :'.    ATCHISON.  59 

money  ju<l.i,nnciil  ;  nor  between  iictions  arising  out  of  tort,  and  those 
founded  upon  contract ;  because  the  distinction  exists  in  fact,  and  not 
in  mere  form.  The  distinction  between  the  action  of  debt,  covenant, 
assumpsit,  trover,  trespass,  trespass  on  the  case,  and  suits  in  equity  to 
recover  money  directly,  may  be  and  is  abolished  by  the  code,  because 
the  remedy  sought  in  all  these  cases  is  the  same,  namely  a  money  judg- 
ment. The  appellee,  therefore,  can  not  bring  his  action  in  replevin  to 
recover  his  specific  rails,  and,  failing  in  that,  maintain  his  case  to 
recover  a  money  judgment  for  their  value,  merely  because  he  has  not 
lost  his  property  in  the  rails.  The  law  affords  him  ample  remedy  if  he 
rightly  chooses  it ;  but  it  is  no  part  of  the  duty  of  this  court  to  instruct 
him  as  to  what  that  remedy  is.  The  petition  is  overruled. 


McGONlGLE  v.  ATCHISON. 

Supreme  Court  of  Kansas,  July  Term,  1885. 

[33  Kan.   726.'\ 

Error  from  Leavenworth  District  Court. 

Action  by  Atchison  against  McGonigle,  to  recover  $2,000  damages 
for  200,000  bushels  of  sand  alleged  to  have  been  taken  from  plaintiff's 
premises  in  Platte  County,  Missouri,  by  the  defendant,  brought  to 
Leavenworth,  Kansas,  and  converted  to  his  own  use.  Trial  at  the 
December  Term,  1S83,  and  verdict  for  plaintiff  for  $1.  Defendant 
moved  for  a  new  trial,  which  motion  the  court  overruled.  Judgment 
upon  the  verdict  for  plaintiff.     McGonigle  brings  the  case  to  this  court. 

The  opinion  states  the  material  facts. 

Thomas  P.  Feulo?i,  for  plaintiff  in  error. 

/.  H.  Gillpatrick  and  Lucien  Baker,  for  defendant  in  error.i 

Valentine,  J.— This  case  has  been  brought  to  this  court  upon  a 
"case-made,"  which  is  a  model  of  brevity  and  clearness,  and  reflects 
great  credit  upon  the  able  counsel  who  prepared  it.  The  case  has  also 
been  very  ably  presented  to  this  court  by  counsel  on  both  sides,  and  if 
we  should  err  in  its  decision,  it  will  not  be  their  fault.  The  amount 
involved  in  this  controversy  -iems  to  be  small  and  trifling,  but  the 
principles  involved  are  supposed  to  be  of  vital  importance,  and  counsel 
for  plaintiff  in  error,  defendant  below,  says  that  the  decision  of  the 
case  involves  the  possible  liability  for  not  only  many  dollars,  but  many 
hundreds  of  thousands  of  dollars.  We  have  therefore,  given  the  case 
a  very  careful  consideration. 

The  record  of  the  case,  as  presented  to  this  court,  shows  that  on 
October  4,  18S3,  David  Atchison  filed  his  petition  in  the  district  court 
of  Leavenworth  county,    in  which  petition  he   alleged,    among    other 

1  The  arguments  are  omitted. 


60  EFFECT   IN   ADJECTIVE    LAW. 

things,  that  he  was  then  and  had  been   for  more  than   five  years  the 
legal  and  equitable  owner  of  a  certain  piece  of  land,  describing  it,  situ- 
ated in  Platte  county,  state  of  Missouri,  and  being  on  what  is  com- 
monly known  as  "Leavenworth   Island;  "  that  the  defendant,  George 
McGonigle,  did,  on  or  about  March  i,  1883,  unlawfully  and  wrongfully 
enter  upon  said  premises  and  dig  sand  thereon,  and  remove,  take  and 
carry  away  to  the  city  of  Leavenworth,  and  convert  and   appropriate 
the  same  to  his  own  use,  to  wit,  200,000  bushels,  of  the  value  of  one 
cent  per  bushel,  to  the  damage  of  the  plaintiff  in   the  sum  of  $2,000, 
and  prayed  judgment  for  the  sum  of  $2,000  and  costs.     To  this  petition 
the  defendant  answered,  the  answer  being  a  general  denial.     Upon  the 
issues  as  thus  made,  the  cause  Came  on  for  trial  before  the  court  and  a 
jury  ;    whereupon  the  defendant  objected  to  the  introduction   of  any 
testimonj',  upon  the  ground  that  the  petition  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action  of  which  the  district  court  had 
jurisdiction.     This  objection  was  overruled  b}-  the  court,  and  the  trial 
proceeded,  and  resulted  in  a  verdict  of  $1  for  the  plaintiff.     The  defend- 
ant moved  for  a  new  trial  upon  the  ground  of  error  of  law  occurring  at 
the  trial  and  duly  excepted  it,  which  motion  was  overruled,  and  the 
defendant  excepted.      Judgment  was   then    rendered  in    favor   of  the 
plaintiff  and  against  the  defendant  for  $1  and  costs,  to  which  judgment 
the  defendant  excepted,  and  now  brings  the  case  to  this  court  for  review. 
Counsel  for  plaintiff  in  error,  defendant  below,  states  in  his  brief  that 
the  question  involved  in  this  case  is  as  follows  :    "Is  this  a  local  or  a 
transitory  action  ?     Is  it  trespass  quare  clausum  fregit,  or  trespass  de 
bonis  asportatis  f'     We  think  the  question  may  be  more  properly  stated 
as  follows  :  Do  the  facts  of  this  case  show  a  cause  of  action  that  is  trans- 
itory, or  one  that  is  purely  local  ?     Or  in  other  words,  do  the  facts  of  this 
case  show  a  cause  of  action  in  the  nature  of  trespass  de  bonis  asportatis, 
or  trover,  on  the  one  side,  or  X.r&s^'&s^  quare  clausum  f regit,  on  the  other 
side  ?     If  the  facts  show  a  cause  of  action  in  the  nature  of  trespass  de 
bonis  asportatis,  or  trover,  then  the  action  is  certainly  transitory  ;  but 
if  they  show  only  a  cause  of  action  in  the  nature  of  trespass  quare 
clausum  f regit,  then  the  action  is  admittedly  local.     The  distinction 
between  transitory  and  local  actions,  both  at  common  law  and  under 
the  code,   is  generally  and  substantially   as  follows  :  If  the  cause  of 
action  is  one  that  might  have  arisen  anywhere,  then  it  is  transitory  ; 
but  if  it  is  one  that  could  only  have  arisen  in  one  place,  then  it  is  local. 
Hence  actions  for  injuries  to  real  estate  are  generally  local,  and  can  be 
brought  only  where  the  real  estate  is  situated  ;  while  actions  for  injuries 
to  persons  or  to  personal  property,  or  relating  thereto,  are  generally 
transitory,  and  may  be  brought  in   any  county  where  the  wrongdoer 
may  be  found.     These  propositions  we  suppose  are  conceded.     But  the 
real  contention   between  the  parties  to  this  action  is,  whether  the  real 
and  substantial  grievance  set   forth  by  the  plaintiff  as  the  foundation 
for  his  action  is  one  which  relates  merely  to  real  estate,  or  one  which 


M'GONIGLK    v.    ATCHISON.  61 

may  be  considered  as  fairly  relating  to  personal  proi)ert}-.  The  petition 
states  wrongs  relating  both  to  real  estate  and  to  personal  property.  It 
states  that  the  defendant  unlawfully  and  wrongfully  entered  upon  the 
plaintiff's  premises,  in  Miss'niri,  and  dug  sand  thereon.  This  of  course 
was  a  wrong  relating  to  real  estate  only  ;  but  the  petition  also  states 
that  after  the  sand  was  severed  from  the  real  estate,  the  defendant  then 
removed  the  same  to  Leavenworth  city,  Kansas,  and  there  converted 
and  appropriated  the  same  to  his  own  use ;  and  these  last-mentioned 
wrongs  certainly  relate  to  personal  property  only  ;  for  as  soon  as  the 
sand  was  severed  from  the  real  estate  it  became  personal  property. 

This  principle,  of  things  becoming  personal  property  when  severed 
froni  the  realty,  is  universally  recognized  by  all  courts  and  by  all  law- 
writers.  Besides,  the  plaintiff  in  this  case,  after  alleging  the  above- 
mentioned  wrongs,  then  ask  for  damages  only  for  the  wrongful  conver- 
sion of  the  sand,  which  was  personal  property,  and  does  not  ask  for 
damages  for  injuries  done  to  his  real  estate.  He  seems  to  waive  all  the 
wrongs  and  injuries  done  with  reference  to  his  real  estate  and  to  his 
possession  thereof,  provided  the  digging  and  the  removal  of  the  sand 
was  any  injurj-  to  either,  and  sues  only  for  the  value  of  the  sand  which 
was  converted.  We  think  it  is  true,  as  is  claimed  by  the  defendant,  that 
the  petition  states  facts  sufficient  to  constitute  a  cause  of  action  in  the 
nature  of  trespass  quare  clan  sum  f regit ;  but  it  also  states  facts  sufficient 
to  constitute  a  cause  of  action  in  the  nature  of  trespass  de  bonis  aspor- 
tatis,  and  of  trover  ;  and  we  think  the  plaintiff  may  recover  upon  either 
of  these  latter  causes  of  action,  for  they  are  unquestionably  transitory  ; 
although  it  must  be  conceded  that  he  can  not  recover  upon  the  former 
cause  of  action,  for  it  is  admittedly  local  in  its  character,  and  because 
the  plaintiff  has  brought  his  action  in  a  jurisdiction  foreign  to  the  one 
where  this  local  cause  of  action  arose.  But  as  the  plaintiff  asks  no 
relief  pertaining  specially  to  the  local  cause  of  action,  but  only  such  as 
may  be  given  upon  the  facts  of  the  transitory'  cause  of  action,  we  think 
he  ma}'  recover. 

All  the  old  forms  of  action  are  abolished  in  Kansas  We  now  have 
no  action  of  trespass  gnare  clausiini  /regit,  nor  of  trespass  de  boiiis 
asportatis,  not  of  trover;  but  only  one  form  of  action,  called  a  civil 
action.^  And  under  such  form  of  action  all  civil  actions  must  be  pros- 
ecuted ;  and  all  that  is  necessary  in  order  to  state  a  good  cause  of  action 
under  this- form  is  to  state  the  facts  of  the  case  in  ordinarj-  and  concise 
language,  without  repetition.-  And  when  the  plaintiff  has  stated  the 
facts  of  his  case,  he  will  be  entitled  to  recover  thereon  just  what  such 
facts  will  authorize.^  We  now  look  to  the  substance  of  things,  and  not 
merely  to  forms  and  fictions.  If  the  facts  stated  by  the  plaintiff  would 
authorize  a  recovery  under  anj-  of  the  old  forms  of  action,  he  will  still 
be  entitled  to  recover,  provided  he  proves  the  facts.     If  the  facts  stated 

1  Civil  Code.  §  10.  2  Civil  Code,  i  S;. 

3  Fitzpatrick  v.  Gebhart,  ;  Kas.  42,  43  :  Kunz  v.  Ward,  2S  id.,  132. 


62  EFFECT   IN    ADJECTIVE    LAW. 

would  authorize  one  or  two  or  more  kinds  of  relief,  he  ma}-  then  elect  as 
to  which  kind  of  relief  he  will  obtain  ;  and  the  prayer  of  his  petition 
will  generally  indicate  his  election.  And  if  one  kind  of  relief  is  beyond 
the  jurisdiction  of  the  court,  and  the  other  within  such  jurisdiction,  the 
plaintiff  may  elect  to  receive  that  kind  of  relief  which  is  within  the 
jurisdiction  of  the  court.  We  think  the  plaintiff  may  maintain  his 
present  action  as  an  action  in  the  nature  of  trespass  de  bonis  asportatis, 
or  trover.  When  the  sand  was  severed  from  the  real  estate  it  became 
personal  property,  but  the  title  to  the  same  was  not  changed  or  trans- 
ferred. It  still  remained  in  the  plaintiff.  He  still  owned  the  sand,  and 
had  the  right  to  follow  it  and  reclaim  it,  into  whatever  jurisdiction  it 
might  be  taken.  He  could  recover  it  in  an  action  of  replevin,^  or  he 
could  maintain  an  action  in  the  nature  of  trepass  de  htmis  asportatis,  for 
damages  for  its  unlawful  removal,'-  or  he  could  maintain  an  action  in 
the  nature  of  trover,  for  damages  for  its  conversion,  if  it  were  in  fact 
converted,^  or  he  could  maintain  an  action  in  the  nature  of  assumpsit, 
for  damages  for  money  had  and  received,  if  the  trespasser  sold  the 
property  and  received  mone}-  therefor.* 

In  all  cases  of  wrong,  the  tort  or  a  portion  thereof  ma^-  be  waived  by 
the  party  injured,  and  he  may  recover  on  the  remaining  portion  of  the 
tort  or  on  an  implied  contract,  provided  the  remaining  facts  will  author- 
ize such  a  recovery.  Mr.  Waterman,  in  his  work  on  Trespass,  uses  the 
following  language : 

"Section  1102.  Although  as  standing  trees  are  part  of  the  inherit- 
ance, and  the  severing  them  from  it  is  deemed  an  injury  to  the  freehold, 
for  which  trespass  qimre  claiiS7i7n  /regit  is  the  appropriate  remedy,  yet 
the  party  may  waive  that  ground  of  recovery,  and  claim  the  value  of 
the  timber  only  thus  severed  and  carried  awa^-.  In  the  one  case,  the 
entering  and  breaking  of  the  close  is  the  gist  of  the  action  ;  in  the 
other,  the  taking  and  carrying  away  of  the  property.  In  the  latter 
case,  the  action  is  transitory,  and  not  local."  '' 

The  plaintiff  in  error,  defendant  below,  has  cited  a  large  number  of 
authorities,  bvit  under  our  code  of  practice  and  procedure  they  hardly 
apply  to  the  facts  of  this  case.  Those  nearest  applicable  are  the  follow- 
ing :  Am.  U?i.  Tel.  Co.  v.  Middleton,  80  N.  Y.  408;  Frost  v.  Dutican,  19 
Barb.  560;  Howe  v.  Willson.  i  Denio,  181  ;  Sturgis  v.  Warren,  11  \t 
433  ;  Baker  V.  Howell,  6  Serg.  &  R.  476  ;  Powell  z'.  Smith,  2  Watts,  126  ; 
Uttendorffer  V .  Saegers,  50  Cal.  496. 

The  case  of  The   Telegraph   Co7npatiy  v.  Middleton,  supra,  was  where 

1  Richardson  v.  York,  14  Me.  216  ;  Harlan  v.  Harlan,  15  Pa.  St.  507  ;  Halleck  ;■.  Mixer,  16 
Cal.  574. 

2  Wadleigh  v.  Janvrin,  41  N.  H.  503,  520  ;  Bulkley  v.  Dolbeare,  7  Conn.  232, 

3  Tyson  v.  McGuineas,  25  Wis.  656 ;  Whidden  v.  Seelye,  40  Me.  247,  255,  256  ;  Riley  v.  Bos- 
ton W.  P.  Co.,  65  Mass.  II  ;  Nelson  v.  Burt,  15  Mass.  204  ;  Forsyth  v.  Wells,  41  Pa.  St.  291 ; 
Wright  V.  Guier,  9  Watts,  172  ;  Mooers  v.  Wait,  3  Wend.,  104. 

4  Powell  V.  Rees,  7  Ad.  &  E.  426  ;  Whidden  v.  Seelye,  40  Me.  255  ;  Halleck  v.  Mixer,  16  Cal. 
574.     See  aUso  in  this  connection  the  case  of  Fanson  v.  I,insley,  20  Kas.  235. 

5  See  also  Nelson  v.  Burt,  15  Mass.  204 ;  Halleck  v.  Mixer,  16  Cal.  574. 


HARRIS    :'.    TOWNSEND.  63 

the  defendant  committed  a  trespass  by  cutting  down  telegraph  poles  in 
a  highway,  and  throwing  them  in  the  ditches  and  on  the  fences  on  the 
sides  of  the  highway,  and  leaving  them  there.  There  was  no  asporta- 
tion from  the  premises,  no  conversion,  and  no  intended  asportation  or 
conversion  ;  and  the  court  held  that  the  action  was  therefore  trespass 
qitair  clausum  f regit,  and  not  trover,  and  that  the  action  was  therefore 
local  in  its  character  and  not  transitory.  The  case  of  Frost  v.  Duncan, 
supra,  was  not  decided  bj-  a  court  of  last  resort ;  and  the  main  question 
decided  was  that  two  causes  of  action  were  improperly  joined  in  one 
count.  Besides,  in  that  case  the  defendants  were  in  the  actual  posses- 
sion of  the  land,  claiming  the  same  as  their  own  under  a  deed.  The 
next  four  cases  were  not  decided  under  any  reformed  code  of  pro- 
cedure, and  we  do  not  think  that  the  vSeventh  and  last  case  cited  con- 
flicts with  the  views  that  we  have  expressed.  The  fact  that  the  question 
of  title  to  real  estate  was  incidentally  raised  in  that  case  makes  no 
difference.  See  the  cases  heretofore  cited,  and  especially  Harlan  v. 
Harlan,  15  Pa.  St.  507  ;  Halleck  v.  Mixer,  16  Cal.  574.  The  plaintiff 
was  in  possession,  claiming  to  own  the  property,  while  the  defendant 
was  a  mere  wrongdoer,  with  no  claim  of  interest  in  the  land. 

We  have  so  far  considered  this  case  as  though  it  made  no  difference 
whether  the  sand  was  severed  from  the  real  estate  and  carried  away  by 
one  act  only,  or  hy  two  or  more  ;  nor  do  we  think  that  it  can  make  any 
difference.  Under  any  circumstances,  the  sand  remains  the  propert}-  of 
the  owner  of  the  land  until  he  chooses  to  abandon  the  same.  We  sup- 
pose that  if  the  sand  were  severed  from  the  real  estate  by  one  act,  and 
then  carried  away  by  another,  this  proposition  would  not  be  questioned, 
and  probably  it  will  not  be  questioned  even  if  the  sand  was  severed  and 
carried  awa}'  by  a  single  act ;  and  if  the  sand  remains  the  property-  of 
the  owner  of  the  real  estate,  as  we  think  it  does,  there  can  be  no  good 
reason  why  he  should  not  be  entitled  to  all  the  remedies  for  its  recov- 
er}-,  or  for  loss  or  damages  for  its  injury,  or  detention  or  conversion, 
which  he  might  have  with  respect  to  any  other  personal  property. 

The  judgment  of  the  court  below  will  be  affirmed. 

All  the  Justices  concurring. 


HARRIS  V.  TOWXSEXD. 

Supreme  Court  of  Arkansas,  November  Term,  18S9. 

[52  Ark.   411.] 

The  complaint  is  this  action  alleges  that  about  the  6th  day  of  TSIarch, 
1887,  the  plaintiff,  Townsend,  and  the  defendant,  Harris,  entered  into 
a  partnership  for  the  purpose  of  editing  and  publishing  the  "  Arka- 
delphia  News,  "  a  weekl\-  newspaper — Harris  being  publisher  and  Town- 


04  EFFECT    IN    ADJECTIVE    LAW. 

send  editor  ;  that  about  the  20th  day  of  July,  1887,  that  being  the 
day  of  publication, 

"the  defendant  having  possession  of  the  only  key  to  the  office  of  publication, 
wickedly,  maliciously,  and  with  the  intent  to  stop  the  publication  of  said  paper 
without  consulting  plaintiff,  and  against  his  will,  locked  the  door  of  said  printing 
office,  carried  therefrom  the  joint  lever  of  the  press,  without  which  it  could  not 
be  run,  and  also  took  the  half-printed  paper  for  that  week,  and  secreted  them  so 
that  plaintiff  was  unable  to  get  possession  of  the  same,  or  to  have  them  in  the 
office  until  the  order  of  the  Chancery  Court  commanded  him  to  replace  them  ; 
that  by  reason  of  said  unbusinesslike  conduct,  the  newspaper  was  suspended  for 
about  two  months,  and  many  of  its  subscribers  and  advertising  patrons  were 
driven  away,  to  the  great  damage  of  the  plaintiff,  in  the  sum  of  $200." 

The  defendant's  answer  contains:  First — The  plea  of  res  adjudicata. 
Second — A  denial  of  the  damage  alleged,  and  an  allegation  that  the 
property  was  taken  by  defendant,  in  order  to  prevent  the  continuance 
of  the  partnership  against  his  will. 

The  plea  of  res  adjudicata  was  heard  by  the  court  sitting  as  a  jury, 
and  its  findings  of  law  and  fact  are  as  follows  :  ' '  That,  previous  to  July 
20,  1887,  the  plaintiff  and  defendant  were  engaged  as  partners  in  run- 
ning a  newspaper  in  Arkadelphia,  called  the  Arkadelphia  News  ;  that 
on  the  25th  day  of  July,  1887,  plaintiff  herein  brought  a  chancery  suit 
on  the  equity  side  of  this  court,  numbered  859  ;  that  defendant  herein 
was  defendant  in  that  suit;  that  plaintiff 's  complaint  asked  for  a  per- 
manent injunction,  restraining  the  defendant  from  unlawfully  interfer- 
ing with  the  partnership  propertj-,  alleging  certain  reckless  and 
unbusinesslike  conduct  upon  defendant's  part ;  that  on  the  first  of 
August,  18S7,  this  defendant  in  that  suit  filed  an  answer  and  cross-com- 
plaint, asking  that  said  partnership  be  dissolved,  and  for  a  settlement 
ofthesame.  On  August  6th,  18S7,  plaintiff  in  that  suit  filed  his  answer 
to  the  cross-complaint  of  this  defendant,  and  in  that  answer  one  of  the 
paragraphs  set  up  a  counter-claim  for  damages  sustaivned  bj-  plaintiff 
herein,  alleging  the  same  cause  of  action  set  up  in  the  complaint  herein, 
and  claiming  the  same  amount  of  damages  asked  in  the  complaint  by 
the  plaintiff;  that  no  objection  appears  to  have  been  raised  on  the  part 
of  defendant  to  the  counter-claim,  and  that  it  nowhere  appears  from  the 
record  in  that  cause  that  the  said  counter-claim  was  ever  withdrawn  by 
plaintiff;  that  defendant  did  not  demur  to  said  counter-claim,  nor  move 
to  transfer  it  to  the  common  law  docket  ;  that  plaintiff"  did  not  ask  said 
court  to  order  the  issue  on  this  counter-claim  to  be  tried  by  the  jury  ; 

that  the  court,  on  the day  of  December,  1887,  made  a  final  decree 

in  said  cause,  settling  all  the  matters  put  in  issue  in  said  cause.  The 
court  finds  that  the  acts  complained  of  in  the  complaint  herein  were 
committed  by  one  partner  to  the  partnership  property  while  the  part- 
nership existed.  The  court  finds  as  a  matter  of  law  that  a  court  of  equity 
had  no  jurisdiction,  in  suits  by  one  partner  to  obtain  damages  for  the 
tortious    acts  of  another  partner  to  the  partnership  property  while  the 


HARRIS   :'.    TOWXSICND.  65 

partnership  lasted,  to  award  damages,  and  that  the  answer  to  the  cross- 
complaint  in  the  chancery  suit  herein,  raised  no  issue  triable  in  a  court 
of  equity,  even  though  defendant  did  not  object  to  the  trial  of  that  issue 
in  that  case  ;  that  a  court  of  equity  can  not  award  damages  for  a  tort 
by  a  i)artner  to  partnership  property.  The  court  therefore  finds  as  a 
matter  of  law,  that  the  decree  of  the  Clark  Chancery  Court,  in  the 
case  of    Townscnd  v.  Harris,  No.   859,  on  chancery  court,  rendered  on 

the  day  of  December,    1887,  does  not  bar  this  suit  between  the 

same  parties,  and  consequently  the  cause  of  action  set  forth  in  plaintiff 's 
complaint  herein  is  not  res  adjndicata.  "  Thereupon  the  case  was  tried 
ripou  the  complaint  and  the  second  paragraph  of  the  answer  before  a 
jury,  and  a  verdict  was  rendered  for  plaintiff  in  the  sum  of  $25.  The 
defendant  appealed. 

Crawford  &  Craivford,  for  appellant. 

Afitrrv  cf  Kinsworth\\  for  appellee. 

Per  CiKiAM. — ^The  authorities  cited  by  the  appellee  are  to  the  effect 
that  an  action  by  a  partner  against  his  co-partner  for  injury  done  to  th-e 
I)artnership  property  is  cognizable  in  a  court  of  law.  None  goes  to  the 
extent  of  holding  that  the  matter  is  not  cognizable  in  a  court  of  equit\-, 
in  an  action  of  account  for  final  settlement. 

But  even  if  the  issue  were  not  properly  cognizable  in  equity',  can  it 
be  held  that  the  judgment  is  void  ?  Under  the  code  a  plaintiff  is  only 
required  to  make  a  plain  statement  of  his  case  in  his  complaint.  If 
the  case  stated  would  formerly  have  been  an  action  at  law,  either  party 
is  entitled  to  a  trial  by  jury  after  the  manner  of  the  common  law  ;  but 
if  the  cause  as  stated  would  have  been  distinctly  equitable  under  the 
old  vSj'steni,  then  it  is  triable  according  to  the  former  chancery  method. 
That  is  the  substantial  difference  between  law  and  equity  under  the 
new  procedure.  It  does  not  recognize  one  judge  as  presiding  over 
separate  tribunals,  the  clash  of  whose  jurisdictions  confounds  the  prac- 
titioner and  ruins  the  suitor.  One  court,  endowed  with  the  powers  to 
try  all  causes,  administers  the  whole  law.  For  its  convenience  separ- 
ate dockets  are  kept  for  the  two  classes  of  cases.  If  no  objection  is 
made  to  the  form  of  trial — that  is,  whether  it  shall  be  according  to  the 
common  law  or  chancery  practice— it  is  adjudged  not  to  be  error  to  trj- 
a  common  law  case  according  to  equity  practice,  or  an  equitable  case 
according  to  the  practice  of  the  common  law.^  It  follows  that  if  objec- 
tion is  made,  and  the  court  applies  the  wrong  form  of  trial  to  the  case 
in  hand,  it  commits  only  an  error  in  the  exercise  of  rightful  jurisdic- 
tion, becau.se  the  power  to  determine  the  cause  and  the  method  by 
which  it  shall  be  tried,  is  devolved  upon  it.  An  erroneous  judgment 
pronounced  in  such  a  case  is  not  a  nullity. 

On  the  finding  of  the  court,  its  judgment  should  have  been  for  the 
appellant  upon  his  plea  of  res  adjndicata,  and  such  judgment  will  be 
rendered  here. 

1  Organ  v.  Railway,  51  Ark.  235. 


66 


EFFECT  IN   ADJECTIVE   LAW. 


/ 


> 


,N 


GUNSAULLUS,   ADM'R.   :'.   PETTIT,   ADM'R. 

Supreme  Court  of  Ohio,  May  22,  1888. 

[46  O.  S.  27.^ 


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f 


^ 
yP 


Error  to  the  Circuit  Court  of  Huron  County. 

F.  D.  Gunsanlljis  and  G.  T.  Stewart,  for  plaintiflf  in  error. 

T.  H.   Wiggins,  for  defendant  in  error. 

MiNSHALL,  J. — The  suit  below  was  brought  by  the  administrator  of 
a  deceased  wife  against  the  administrator  of  her  deceased  husband,  and 
sought  to  charg^ejiis  estate  with  a  claim  for  money  had  and  received 
v.by  him  intrust  for  her.  They  intermarried  in  1836,  she  being  at  the 
tiifie  tTTe  widow  of  Merritt  Pettit  deceased,  in  whose  lands  she  had  a 
dower  estate.  It  is  claimed  that  her  last  husband,  the  decedent  of  the 
plaintiff  in  error,  received  the  rent  arising  from  the  dower  estate  of  his 
wife  in  the  lands  of  her  former  husband,  amounting  to  $2,950,  and, 
also,  the  money  paid  by  a  railway  company  for  the  right  of  way 
through  her  dower  estate,  and  that  in  1868  he  received  her  share  in  the 
estate  of  her  father,  amounting  to  $650.59  ;  that  all  these  sums  were 
received  by  the  husband  in  the  right  of  the  wife,  without  intention  to 
make  the  same  his  own  ;  that  he  so  held  the  money  in  trust  for  her, 
and  had  promised  to  invest  it  for  her  use,  but  died  before  doing  so. 
All  the  material  facts  were  controverted  by  the  answer.  The  case  was 
tried  to  the  court,  a  jury  being  waived  ;  the  court  found  for  the  defend- 
ant and  dismissed  the  petition.  Thereupon  the  plaintiff  below  appealed 
to  the  district  court,  and,  the  cause  having  been  transferred  to  the  cir- 
cuit court,  a  motion  was  made  therein  to  dismiss  the  appeal  on  the 
ground  that  neither  party  was  entitled  to  a  jurj^  on  the  issues  of  fact 
joined  between  them.  The  motion  was  overruled,  and,  a  trial  be-ing 
had,  the  circuit  court  rendered  a  judgment  in  favor  of  the  appellant. 
In  refusing  to  dismiss  the  appeal  we  think  the  court  erred. 

The  constitutional  limitation  as  to  trial  by  jury  is  on  the  power  to 
abridge,  and  not  on  the  power  to  extend,  the  right  of  trial  by  that 
method.  The  right  may  be  extended,  but  n"t  pKt-i'r|g-pri  So  that  the 
quCvStion  is  not  merely,  whether  at  common  law,  either  party  had,  upon 
the  issues  joined,  a  right  to  trial  by  jury,  but  whether  under  the  pro- 
visions of  our  code  of  civil  procedure  such  right  is  awarded  him.  The 
code  provides  '  that  issues  of  fact  arising  in  actions  for  the  recovery  of 
money  only  shall  be  tried  by  a  jur3%  unless  waived  by  the  parties  ;  and 
vSuch  actions  are  not  appealable.'  Hence  the  right  of  a  party  to  trial  by 
jury,  in  a  given  case,  does  not  depend  upon  the  character  of  the  prin- 
ciples upon  which  he  may  base  his  right  to  relief,  but  upon  the  nature 
and  character  of  the  relief  sought.     If  the  relief  .sought  is  a  money 

lg5I30R.  S.  2§5226R.  S. 


GUNSAULLUS,    ADM'R.   V.   PETTIT,    ADM'R.  67 

judgment  only,  and  all  that  is  required  to  afford  him  a  remedy,  it  is 
imniaterialwhether  his  right  ofaction  is  based  upon  what  \v:ereJIbr- 
merl}'  regarded  as  ecjuitable  or  upon  what  were  regarded  as  legal  prin- 
ciples.  In  either  case  the  remedy  must  be  sought  in  the  civil  action  of 
the  code ;  and  in  it  trial  by  jury  is  given  upon  all  issues  of  facts  where 
the  relief  sought  is  a  money  judgment  only.^ 

The  claim  of  the  plaintiff  below,  when  reduced  to  its  substance,  is, 
that  the  husband  of  his  intestate  received  moneys  belonging  to  her, 
that  he  promised  to  hold  and  invest  for  her  use.  For  not  doing  so,  he 
asks  to  recover  a  judgment  for  money  against  the  administrator  of  the 
husband  for  the  amount  so  received  ;  and  such  judgment  and  none  other 
was  rendered  by  the  circuit  court.  The  fact  that  the  court  ordered  that 
it  should  be  a  lien  upon  all  the  lands  of  which  the  husband  died  seized, 
added  nothing  to  the  relief  granted  ;  for  such  would  have  been  its  effect 
had  no  such  order  been  made,  had  the  court  had  jurisdiction  to  hear 
and  determine  the  case  on  appeal. 

The  fact  that  prior  to  the  code  the  only  remedy  would  have  been  a 
suit^in  ec][uity,_does  not  affect  the  right  of  either  party  to  demand  a  jurj' 
trial  upon  the  issues  of  fact  joined  in  the  action.  Hence  the  case  of 
HiiServ.  Huberts  Adm'r,  lo  Ohio,  371,  has  no  application  to  the  ques- 
tion presented  here.  The  case  then  was  not  appealable,  and  the  circuit 
court  erred  in  not  sustaining  the  motion  to  dismiss  the  same."' 

Judgment  reversed  and  appeal  dismissed. 

1  Citing  Alsdorf  v.  Reed,  45  O.  S.  653. 

2  See  also  Koelsch  v.  Mixer  (1891),  5  Ohio  C.  C.  404;  and  compare  McCrory  v.  Parks 
(1S6S),  18  O.  S.  I  ;  Black  v.  Boyd  (1S93),  50  O.  S.  46  :  "The  equity  jurisdiction  of  a  court  of 
common  pleas,  in  matters  of  mutual  and  complicated  accounts,  is  not  abrogated  by  section 
5150,  Revised  Statutes,  which  provides  that  either  party  may  demand  a  jury  trial  of  'issues 
of  fact  arising  in  actions  for  the  recovery  of  money  only.'  An  action  is  not  one  for  the 
recovery  of  money  only,  within  the  purview  of  the  statute,  where,  to  administer  full 
and  complete  relief  therein,  it  is  necessary  to  invoke  the  equity  powers  of  the  court  to 
adjust  the  accounts  between  the  parties,  and  in  such  case  either  party  may,  by  virtue  of 
section  5226,  of  the  Revised  Statutes,  appeal  to  the  circuit  court  from  the  judgment  of  the 
court  of  common  pleas." 


68  EFFECT   IN    ADJECTIVE   LAW. 

KIRKWOOD  r.  FIRST  NATIONAL  BANK  OF  HASTINGS. 
Supreme  Court  of  Nebraska,  January  Term,  1894. 

[40  A/'eb.  4S4.] 

Error  from  the  District  Court  of  Adams  County 

L.   W.  Billingsky  and  R.  J.  Greene,  for  plaintiff  in  error. 

Tibbets,  Morey  &  Lewis,  contra.  ^ 

Irvine,  C. — The  plaintiff  in  error  was  the  plaintiff  in  the  district  court. 
In  her  petition  she  avers  that  on  December  4,  1890,  she  deposited  with 
the  defendant  bank  $3,000,  for  which  the  defendant  issued  to  her  a  cer- 
tificate of  deposit ;  that  on  or  about  June  6,  1891,  she  lost  the  certificate 
and  at  once  gave  notice  of  loss  to  the  defendant ;  that  she  had  not  at 
the  time  of  the  loss  or  at  any  other  time  indorsed  the  certificate  or  in 
any  way  negotiated  or  hypothecated  the  same.  The  prayer  was  for  a 
judgment  for  the  amount  of  the  certificate  with  interest. 

The  defendant,  by  its  answer,  admits  the  deposit  and  the  issuance  of 
a  certificate  in  words  and  figures  as  follows  : 

"First  National  Bank, 

"  Hastings,  Nebraska,  Dec.  4,  1890.     28906. 
"This  certifies  that  Miss  Rose  Kirkwood  has  deposited  in  this  bank  three  thou- 
sand dollars  {$3,000),  payable  to  order  of  self,  in  current  funds,  on  return  of  this 
certificate  properly  indorsed.     This  deposit  not  subject  to  check.     With  inter- 
est at  six  per  cent  if  left  six  months  ;  no  interest  after  six  months. 

"Certificate  of  deposit.  "  C.  B.  Hutton,  for  Cashier." 

The  defendant  further  alleged  that  when  the  plaintiff  demanded  pay- 
ment she  failed  to  produce  the  certificate,  claiming  that  she  had  lost 
it ;  that  the  defendant  was  at  all  times  ready  and  willing  to  pay  the 
certificate  upon  its  production,  or,  if  lost,  to  pay  it  upon  the  execution 
and  delivery  of  a  sufficient  indemnifying  bond.  The  defendant  then 
denied  each  and  every  allegation  in  the  petition  not  specificallj-  admitted 
or  modified,  and  prayed  that  the  plaintiff  be  ordered  to  execute  and 
deliver  an  indemnity  bond  to  secure  it  against  an3^  loss  by  reason  of 
said  certificate. 

There  was  a  trial  upon  these  pleadings,  a  jury  being  expressly 
waived,  and  the  following  finding  and  judgment  were  entered  : 

"  This  cause  comes  finally  on  to  be  heard  upon  the  petition  of  the  plaintiff, 
the  answer  of  the  defendant,  and  the  evidence,  and  the  same  is  submitted  to  the 
court  ;  upon  consideration,  the  court  finds  that  there  is  due  to  the  plaintiff  from 
the  defendant  upon  the  cause  of  action  set  out  in  her  said  petition  the  sum  of 

$3,090. 

"It  is  therefore  considered  and  adjudged  by  the  court,  that  the  plaintiff  have 
and  recover  of  and  from  the  said  defendant  the  said  sumof  $3,090,  and  that  each 
party  to  this  action  pay  half  of  the  costs  herein. 
1  The  arguments  are  omitted. 


KIRKVVOOD    V.    FIRST   NATIONAL    BANK    OF   HASTINGS.  69 

"It  is  also  considered  and  ordered  by  the  court  that  the  defendant  pay  the 
said  sum  of  $3,090  to  the  clerk  of  this  court,  to  be  paid  over  to  said  plaintiff  upon 
the  filing  by  plaintiff,  with  the  clerk  of  this  court,  of  a  good  and  sufficient  bond 
of  indemnity  with  approved  sureties,  to  be  approved  by  said  clerk,  indemnifying 
the  said  defendant  against  any  and  all  liability  which  may  hereafter  arise  and 
might  subject  the  said  defendant  to  the  payment  of  the  said  certificate  of  deposit, 
as  set  out  in  said  petition,  and  heretofore  lost  by  said  plaintiff." 

The  plaintiff  brings  the  cause  here,  assigning  several  errors,  all, 
however,  going  to  the  authority  of  the  court  to  make  an  order  requir- 
ing a  bond  of  indemnity.  There  is  no  bill  of  exceptions  and  the  case 
can  be  reviewed  only  upon  the  petition,  answer,  and  judgment. 

There  is  a  great  deal  of  argument  in  the  briefs  to  the  effect  that  the 
action  was  begun  as  one  at  law  ;  that  an  action  at  law  can  only  be 
maintained  upon  a  lost  instrument  when  it  is  non-negotiable,  or,  if 
negotiable,  when  lost  after  maturity  or  unindorsed,  and  that  in  any 
event  in  an  action  at  law.no  indemnity  can  be  required.  These  distinc- 
tions have  been  recognized  in  England  and  generally  in  those  of  the 
United  States  where  the  courts  of  law  and  equity  are  distinct.  But 
counsel  lose  sight  of  the  fact  that  our  district  courts  are  courts  of  gen- 
eral law  and  equity'  jurisdiction  ;  that  the  code  abolishes  formal 
distinctions  between  law  and  equity,  and  that  where  a  cause  of  action, 
either  at  law  or  in  equity,  is  stated  in  a  petition  the  district  court  may 
administer  relief  according  to  the  nature  of  the  case,  without  regard  to 
forms  of  action.  Had  the  old  practice  prevailed,  upon  the  tender  of 
proper  issue,  if  the  court  had  found  that  indemnity  was  proper,  the 
plaintiff  could  have  obtained  no  relief  if  she  began  at  law.  Had  she 
begun  in  equity,  she  wculd  have  obtained  the  appropriate  relief  accord- 
ing to  the  pleadings  and  the  proof.  Under  our  practice,  she  alleging  a 
state  of  facts  entitling  her  to  relief  at  law  and  the  defendant  by  answer 
setting  up  facts  entitling  it  to  equitable  relief,  the  question  is  not  one 
of  jurisdiction  but  of  proof,  and  the  court  had  jurisdiction  to  enter 
either  an  absolute  judgment  or  one  conditioned  upon  the  execution  of 
an  indemnity  and  according  as  the  proof  might  justify.   .   .   .^ 

There  is  no  finding  sufficient  to  sustain  that  portion  of  the  judgment 
requiring  indemnity-.  That  portion  of  the  judgment  is  reversed,  and 
the  cause  remanded  for  a  new  trial  upon  the  issues  relating  to  the 
defendant's  claim  for  indemnity.  Judgment  accordingly . 

1  Part  of  the  opinion,  dealing  with  other  topics  than  the  question  of  pleading,  is  omitted. 


EFFECT   IN    ADJECTIVE   LAW. 


RAYMOND  :-.   RAILWAY  COMPANY. 
SUPREME   COURT   OF   OHIO,    DECEMBER    I4,    1897. 

[57  O.  S.  271.] 

The  plaintiff's  action  was  commenced  in  the  court  of  common  pleas, 
April  22,  1892,  by  the  filing  of  a  petition  alleging  in  substance,  that 
the  plaintiff  was,  and  has  been  for  more  than  twenty-one  years,  the 
owner  of,  and  in  undisputed  possession  of  certain  lots  in  the  city  of 
Toledo  ;  that  the  defendant  company,  and  the  other  defendants,  its  offi- 
cers, with  full  knowledge  of  plaintiff's  ownership  and  possession,  had 
entered  upon  said  land  and  placed  stakes,  etc.,  thereon,  and  were  pro- 
posing to  forcibly  and  unlawfully  enter  upon  and  take  possession  of 
the  lands  under  some  pretended  claim  of  title,  which,  if  pursued, 
would  cast  a  cloud  upon  the  title  of  plaintiff,  and  do  him  irreparable 
injur>\  An  injunction  was  asked  restraining  the  defendants  from  enter- 
ing upon  the  lands,  and  that,  if  there  be  any  dispute  as  to  the  true 
boundary  line,  that  the  same  may  be  determined  by  direction  of  the 
court,  and  that  plaintiff  have  all  proper  relief. 

An  injunction  was  allowed  on  this  petition.  Two  amendments  fol- 
lowed, more  particularl}-  defining  the  boundaries.  May  25,  1894,  an 
answer  was  filed  taking  issue  as  to  the  ownership  of  the  land  and  as  to 
possession,  and  setting  up  new  matter  by  way  of  defence.  A  reply  fol- 
lowed denying  the  averments  of  new  matter.  November  3,  1894,  a 
supplemental  petition  was  filed,  making  Samuel  R.  Galloway,  receiver, 
a  party,  and  on  the  same  date  an  amend:uent  to  the  reply,  further 
replying  to  the  answer,  was  filed. 

At  the  May  term,  1895,  leave  was  granted  plaintiff  on  his  applica- 
tion, to  file  an  amended  and  supplemental  petition,  and  to  make  R.  B. 
F.  Pierce,  receiver,  a  party,  and  on  June  3,  1895,  a  pleading  entitled 
"amended  and  supplemental  petition  "  was  filed,  a  synopsis  of  which 
is  given  in  the  opinion.  October  10,  following,  was  filed  the  answer  of 
the  company  to  the  amended  and  supplemental  petition  filed  June  3, 
1895,  in  which  it  alleged  in  substance  :  i.  That  it  was  an  Ohio  corpor- 
ation owning  a  line  of  railway  from  Toledo  to  East  St.  Louis,  Illinois  ; 
that  it  was  the  owner  of  certain  yards  and  tracks  in  Toledo  ;  that  said 
Pierce  was  the  duly  appointed,  qualified,  and  acting  receiver,  under 
appointment  from  the  Circuit  Court  of  the  United  States  ;  that  as  such 
he  was  in  possession  and  control  of  and  operating  said  railroad  ;  that 
at  and  about  the  time  of  the  commencement  of  the  action  and  subse- 
quent thereto,  the  defendant  company  was  in  possession  of  the  land 
claimed  by  plaintiff,  and  had  theretofore  constructed  a  fence  thereon  ; 
that  since  the  twenty-third  day  of  January,  1895,  said  Pierce,  receiver, 
had  been,  and  still  was,  in  the  possession  of  said  land  ;  and  the  defend- 
ant denied  each  and  every  other  allegation  in  the  amended  and  supple- 


RAYMOND    V.    RAILWAY    COMPANY.  71 

mental  petition  contained.  2.  Adverse  possession  for  twenty-one  years. 
3.  That  the  company  and  its  grantors,  being  in  possession,  had  made 
valuable  improvements  thereon  for  railroad  purposes  with  full  knowl- 
edge and  consent  of  the  owner,  who  made  no  protest  or  objection, 
which  conduct  was  acted  upon  by  the  company,  and  it  would  be  greatly 
injured  by  allowing  plaintiff  now  to  establish  any  right  or  title  to,  or 
interest  in  said  land.  4.  Statute  of  limitation  of  twenty-one  years. 
And  asked  to  be  hence  dismissed  with  its  costs. 

A  reply  to  this  answer  was  filed  on  the  day  of  trial. 

At  the  October  term,  the  plaintiff,  having  been  granted  leave  to  file 
instanter  his  reply  to  this  answer,  and  the  reply  (as  above  stated)  hav- 
ing been  filed,  the  cause  thereupon  came  on  to  be  heard  and  was  sub- 
mitted upon  the  pleadings  and  the  evidence.  And  the  court,  being  full\- 
advised  in  the  premises,  and  having  heard  the  arguments  of  counsel, 
found  for  the  defendants.  It  then  ordered,  adjudged,  and  decreed,  that 
the  petition  and  the  amended  and  supplemental  petitions  of  plaintiff 
be  dismissed,  and  that  defendants  go  hence  without  a  day,  and  recover 
costs.  Thereupon  notice  of  appeal  was  given,  amount  of  bond  fixed, 
and  bond  duly  given. 

In  the  circuit  court  defendants  interposed  a  motion  to  dismiss  the 
appeal  on  the  ground  that  the  cause  is  not  appealable.  The  circuit 
court  sustained  the  motion,  and  dismissed  the  cause  and  the  appeal. 
Reversal  of  this  order  of  dismissal  is  now  asked. 

Hurd,  Brumback  &  Thatcher  and  Erwin  P.  Raymond,  for  plaintiff 
in  error. 

Broivn  &  Geddes  and  Clarence  Broxvn,  for  defendants  in  error. ^ 

Spear,  J. — The  question  whether  the  cause  was  or  was  not  appeal- 
able,  depends  upon  whether  the  case  in  the  court  of  common  pleas  was 
olie'r  I  wIltclTa  jury'tTTal  could  of  right  be  demanded.     This  depends 
upotimie  character  of  the  case  which  was  actually  tried.     It  is  con- 
ceded that  upon   the  original  pleadings,  and  the  issues  made  as  they 
stood  prior  to  the  filing  of  the  amended  and  supplemental  petition, 
June  3,  1S95,  the  cause  was  one  in  equity,  and  triable  to  the  court  alone 
It  is  contended  by  plaintiff  in  error,  that  the  nature  of  the  action 
not  changed  at  any  stage  of  the  controversy,  but  remained  an  action  to      /  -^    «Z.. 
establish  a  boundary  line  ;  to  prevent  multiplicity  of  suits  ;  to  prevent    ^'^*^    ^ 
irreparable  damage  about  to  be  done  by  an  insolvent  defendant  to  prop-   «i.   L^fj/^^ 
erty  of  plaintiff  against  his  protest ;  and  to  quiet  title  and  remove  a  ~/y% 
cloud  from  title,  and  so  was  a  case  in  equity  to  the  end  ;  that  this  is   *  ^^   '^ 
abundantl}'  shown  by  the  pleadings,  taken  together,  and  the  judgment   ^^^**<l^f2X 
rendered  and  was  so  understood  by  all  the  parties  and  by  the  trial  court,  ^  r-  £ 
and  that  this  is  made  clearly  apparent  by  the  reply  filed  October  16,  f  ^^^  1 
1895,   and  the  action  of  the  court  at  the  trial.     Section   79,   Revised   4^^***i     "t 
Statutes,   is  cited  as  authorizing  a  proceeding  to  quiet  title  as  here  77/. 
prayed.     And  it  is  true  that  the  last  reply  avers,  that  "the  main  ques-      ^      ^_^ 

1  The  arguments  are  omitted.  s-'l,*'^         y 


wa^s     WJiiif^ 


72  EFFECT   IN   ADJECTIVE    LAW. 

tion  at  issue  between  plaintiff  and  defendant,  is  the  boundary  line  of 
what  is  known  as  the  bed  of  the  Miami  and  Erie  canal,  so  called;  " 
also,  that  since  the  commencement  of  the  action,  the  company  has 
been  from  time  to  time  encroaching  on  the  lots  of  plaintiflF,  to  his 
great  and  irreparable  injury,  and  that  the  action  among  other  things,  ' 
is  to  prevent  vexatious  and  repeated  litigation.  And  the  reply  does 
pray— 

"  in  addition  to  his  prayer  in  the  amended  and  supplemental  petition,  that 
the  court  will  establish  and  fix  the  boundary  line  of  the  said  Miami  and  Erie 
canal  bed,  and  decree  that  the  premises  in  question  belong  to  this  plaintiff.  " 

It  is  true,  also,  that  the  cause  was  tried  to  the  court  without  formal 
waiver  of  a  jury,  and  that  the  court,  in  its  journal  entry,  does  adjudge 
and  decree  that  the  petition,  as  well  as  the  amended  and  supplemental 
petition  of  the  plaintiff,  be  dismissed,  all  which  gives  color  to  the 
claimed  understanding.  But  the  ultimate  question  is  not,  what  was 
the  understanding  of  counsel,  or  even  of  the  trial  court,  as  to  the  char- 
acter of  the  issue  joined,  nor  yet  the  form  of  the  judgment  rendered, 
but  what,  in  law,  was  the  nature  of  the  action,  a"d  wbat  the  chaxacter 
of  theTssues~as  shown  by  the  pleadings  which  control  the  case.  And 
this  leads  to  an  inquiry  respecting  the  effect  upon  the  case  made  in  the 
original  pleadings  by  the  filing  of  the  amended  and  supplemental  peti- 
tion of  June  3,  1895,  and  as  to  the  case  presented  by  that  pleading. 

That  a  plaintiff  may  substitute  an  amended  petition  in  the  place  of 
the  original,  and  change  the  form  of  action  from  an  equitable  action  to 
a  legal  action,  where  the  general  identity  of  the  transaction  is  main- 
tained and  the  claim  not  substantially  changed,  admits  of  no  question ; 
nor  is  there  doubt  that  if  such  change  is  made,  the  court,  in  determin- 
ing the  issues  to  be  tried,  will  look  wholly  to  the  amended  pleadings, 
disregarding  the  original,  and  the  cause  will  thereafter  be  treated  as  a 
suit  at  law  solely,  and  will  proceed  to  trial  and  judgment  as  though  it 
had  been  commenced  as  a  legal  action. 

The  effect  of  the  pleading  filed  June  3,  1895,  upon  the  issues  thereto- 
fore raised  in  the  case,  would  not  be  conclusively  determined  by  its 
title  of  "  amended  and  supplemental  petition, "  uor  by  the  expression 
"  for  amended  and  supplemental  petition  herein,  "to  be  found  in  the 
first  line,  although  such  title  and  such  statement  should  not  be  over- 
looked in  ascertaining  its  effect,  but  if  the  new  pleading  appears  to 
have  been  filed  not  by  way  of  addition  merely,  to  the  original  petition, 
and  if  it  appears  also  to  contain  a  full  statement  of  the  plaintiff's  case, 
being  on  its  face  a  statement  of  an  entire  cause  of  action,  and  in  sub- 
stance a  substitute  for  the  original,  the  filing  of  it  by  the  plaintiff  will 
be  regarded  as  implying  an  abandonment  by  him  of  the  case  made  in 
the  original  petition  and  any  additions  thereto,  and  as  selecting  this  as 
the  pleading  on  which  he  founds  his  suit,  and  the  only  petition  which 
Mie  court  is  to  consider  in  determining  the  issue  to  be  tried.     Such,  we 


RAYMOND   v.    RAILWAY   COMPANY.  73 

think,  is  the  scope  of  this  pleading,  as  must  be  apparent  to  an\-  legal 
mind  on  an  inspection  of  it. 

What,  then,  is  the  character  of  the  case  which  this  pleading  makes? 

It  starts  with  the  introductor}-  phrase  "for  amended  and  supple- 
mental petition  herein,"  then  follows  a  description  of  the  defendant 
company,  and  an  averment  that  it  is  the  owner  of  a  line  of  railway 
from  Toledo  to  St.  Louis,  and  now  is,  and  for  a  long  time  heretofore 
has  been,  the  owner  of  certain  yards  and  tracks  operated  by  it  in  con- 
nection with  its  said  line  of  railway  in  Toledo,  and  that  one  Pierce  is 
receiver,  now  in  possession  operating  the  road.  It  then  avers  that 
plaintiff  claims  an  estate  in,  and  is  the  owner  in  fee  simple  of,  four  lots 
on  the  Port  Lawrence  division  of  Toledo,  as  laid  out  and  platted,  and 
in  size  as  shown  by  the  Gower  &  Walker  maps  of  Toledo ;  that  for  a 
long  time  the  defendant  company,  its  predecessors  and  grantors, 
acquiesced  in  his  ownership  and  possession  "  until  up  to  about  the  time 
of  the  commencement  of  this  action,"  at  which  time  the  defendant 
company,  well  knowing  of  the  rights  and  ownership  of  plaintiff 
unlawfully  and  forcibly  entered  upon  the  lots,  against  the  protest  of 
plaintiff,  and  took  possession  of,  and  fenced  in  a  large  portion  thereof, 
and  laid  its  railroad  tracks  thereon,  without  making  any  compensation 
to  plaintiff,  to  wit :  a  strip  fifteen  to  thirty-five  feet  in  width,  next 
adjoining  the  property  of  the  company,  being  formerly  the  canal  bed 
of  the  INIiami  and  Erie  canal,  and  the  company  and  the  receiver  con- 
tinue to  hold  possession,  interfering  with  plaintiff's  rights  and  cast- 
ing a  cloud  upon  his  title,  to  his  great  and  irreparable  damage.  Then 
follows  an  averment  that  defendant's  onlj-  title  is  by  virtue  of  a  claimed 
purchase  of  the  canal  bed,  which  is  only  eighty-eight  and  one-half  feet 
wide,  although  the  defendant,  at  the  commencement  of  the  action 
claimed,  and  now  claims,  a  greater  width,  and  under  said  claim  has 
forcibU-  entered  upon  and  taken  said  portion  of  plaintiff 's  lots  without 
compensation,  and  that  the  defendant's  claim  is  adverse  to  plaintiff's 
rights.  The  prayer  is  that  thfe  defendants  show  their  interest  in  the 
property  ;  that  it  may  be  adjudged  null  and  void ;  that  judgment  for 
the  possession  of  said  property  may  be  awarded  to  the  plaintiff,  and 
defendant  enjoined  from  interfering  therewith  until  compensation  has 
been  made,  and  for  other  proper  relief. 

It  must  be  manifest  that  the  reference  to  the  Gower  &  Walker  map, 
and  the  statement  of  the  company's  knowledge  of  and  acquiescence  in 
plaintiff's  ownership  and  possession,  and  of  its  title,  and  the  width  of 
the  old  canal  bed,  are  but  statements  of  evidence,  and  can  not  aid  the 
petition,  and  that  the  averment  as  to  the  possession  of  the  company 
casting  a  cloud  upon  the  plaintiff  's  title  to  his  irreparable  damage,  and 
that  its  claim  is  adverse  to  plaintiff's  rights,  are  simply  legal  conclu- 
sions. It  is  to  be  noted,  also,  as  a  significant  fact,  that  while  there  is 
abundant  claim  of  ownership  in  plaintiff,  there  is  not  a  clear  allegation 
of  possession  in  him  anywhere  in  the  pleading.     The  allegation  that 


L^ 


74  EFFECT   IN   ADJECTIVE   LAW. 

defendant  acquiesced  in  the  ownership  and  possession  of  plaintiff  ' '  until 
up  to  about  the  time  of  the  commencement  of  the  action,  at  which  time 
the  railroad  company  entered  upon  and  took  possession  of,  and  fenced 
in  a  large  portion  thereof,  and  laid  its  tracks  thereon, "  if  intended  as  a 
claim  of  possession  in  plaintiff  at  the  time,  is  at  best  a  dubious  and 
equivocal  averment,  for  the  term  "until  up  to  about  "  would  naturally 
imply  a  time  preceding  the  date  given.  And  it  would  seem  that  the 
draftsman  could  hardly  have  intended  to  aver  possession  in  plaintiff  at 
the  commencement  of  the  action,  especially  when  it  is  remembered  that 
a  preliminary  injunction  was  allowed  at  the  filing  of  the  first  petition, 
and  that  there  is  no  claim  in  this  petition  that  the  company  acquired 
possession,  or  enlarged  its  possession,  in  violation  of  the  court's  order. 
It  follows,  we  think,  conclusively,  that  at  the  commencement  of  the 
.      '       action,  the  companv  w^as  in  possession  of  the  strip  in  controversy,  and 

I  rvy/]/  t]^at  the  primary  object  sought,  as  shown  by  this  petition,  w^as  to  pro- 
cure  the  judgment  of  a  court  ousting:  it  from  that  possession.  This 
construction  is  aided  by  the  fact  that  the  receiver  is,  by  supplementary 

j/^^kv  pleading,  made  a  party.  No  allegation,  save  as  to  possession,  is  made 
against  him,  nor  was  he  for  any  other  matter  than  possession,  a  neces- 
sary party,  having  acquired  whatever  right  he  had  during  the  pendency 
of  the  action. 

Thus  we  have  a  case  of  a  plaintiff  out  of  possession  making  claim  and 
title  to  possession  of  land,  and  praj'ing  a  court  to  adjudge  his  title 
good  and  award  him  possession  ;  in  other  words,  praying  to  recover  the 
laa^.  All  other  relief  sought  is  ancillary  to  this  ;  it  is  relief  which,  if 
a  proper  case  is  made  by  the  evidence,  may  follow,  but  can  not  precede, 
judgment  of  possession.  That  is,  the  case  made  in  the  pleading  is  for 
possession  of  land,  and  then  equitable  relief  to  prevent  the  company 
interfering  with  that  possession  until  compensation  shall  be  made.  The 
real  and  primary  question  was  one  of  title.  That  settled  in  favor  of 
the  plaintiff,  all  other  claims  would  follow  and  be  determined  as  mat- 
ters of  relief  in  aid  of  the  recovery,  while,  if  settled  against  the  plaintiff, 
his  whole  contention  would  fail.  It  seems  to  us  that  it  would  be  an 
unnecessary  waste  of  space  to  stop  to  demonstrate  that  this  action,  as 
made  by  the  amended  and  supplemental  petition,  is,  as  matter  of  pri- 
mary relief,  neither  a  bill  for  an  injunction  to  restrain  a  continuing 
trespass,  nor  a  bill  to  establish  a  boundary  line  between  adjoining  pro- 
prietors, nor  an  action  to  prevent  a  multiplicity  of  suits.  Nor  could  it 
be  maintained  as  an  action  to  quiet  title  under  section  5779,  Revised 
Statutes.  That  section  authorizes  the  bringing  of  an  action  "  by  a  per- 
son out  of  possession,  having  or  claiming  to  have,  an  estate  or  interest 
in  remainder  or  reversion  in  real  property,  against  any  person  who 
claims  to  have  an  estate  or  interest  therein,  adverse  to  him,  for  the  pur- 
pose of  determining  the  interests  of  the  parties  therein.  "  The  plaintiff 
does  not  claim  to  have  an  interest  in  remainder  or  reversion  ;  he  claims 
to  have  title  to  the  entire  estate,  present  as  well  as  prospective. 


GILES   V.    LYON.  75 

Nor  can  it  be  reasonably  claimed  that  the  plaintiff 's  case  is  changed, 
or  in  any  way  aided,  by  the  answer.  That  pleading,  besides  general 
denial  and  plea  of  the  statute  of  limitations,  sets  up  an  equitable 
defence  by  way  of  estoppel.  But  it  is  common  knowledge  that  this  may 
be  done  under  our  statutes,  sections  5071  and  5782.  It  seems  equally 
well  settled  that,  unless  a  new,  affirmative  case  is  made  by  the  defend- 
ant which  requires  a  trial  in  advance  of  a  trial  on  the  plaintiff's  cause 
of  action,  and,  if  found  in  favor  of  the  defendant,  would  wholly  super- 
sede plaintiff's  claim,  the  trial  of  the  case  made  by  the  plaintiff  is  not 
affected.  The  equitable  plea  in  this  answer  is  a  defence  merely.  If 
found  in  favor  of  the  company,  the  effect  would  be  simply  to  defeat  a 
recovery.  See  Smith  v.  Aitderson,  20  O.  S.  76  ;  Bucktier  v.  Mear,  26 
O.  S.  514.  Nor  do  the  allegations  of  the  reply  change  or  aid  the 
plaintiff's  case  in  chief.  For  that  we  look  to  the  petition,  not  to  the 
reply.     New  matter  therein  set  up  for  the  first  time  can  not  avail. 

It  results  that  the  case  tried  in  the  court  of  common  pleas  was  an 
action  for  the  recovery  of  specific  real  propertv.     Section  5130,  Revised  ^ 

Statutes,   requires    that    ran^^^y;    c>^   this    natnrp    gVinll    Vip  tn'pH    hy  n  jury     L        ^ j^ 

unless  a  jurj-  trial  be  w:aived.  In  such  action  no  right  of  appeal  exists, 
for,  under  section  5226,  the  right  to  appeal  is  limited  to  actions  in 
which  the  right  to  demand  a  jury  did  not  exist ;  and  the  tacit  waiver 
of  the  right  to  demand  a  jur}-,  and  submission  to  the  court,  can  not 
change  the  character  of  the  action.  That,  as  we  have  already  found,  is 
to  be  determined  by  the  nature  of  the  action  itself. 

There  was  no  error  in  dismissing  the  appeal.     Judgmetit  affirmed. 


t 


GILES  V.  LYON. 

Court  of  Appeals  of  New  York,  April,  1851. 

[4  A^.    Y.  600.] 

Gardiner,  J.' — The  suit  was  commenced  in  the  supreme  court  in  De- 
cember, 1848,  and  was  subsequently  transferred  to  the  superior  court  in 
the  city  of  New  York,  as  appears  by  the  pleadings,  and  the  captions  of  the 
decrees  made  in  the  cause,  in  pursuance  of  the  47th  section  of  the 
amended  code  of  1849.  By  that  section,  the  supreme  court  is  authorized, 
by  order,  to  transfer  to  the  superior  court,  all  civil  suits  at  issue  at  the 
passage  of  the  act,  (12th  April,  1849,)  that /"row  and  after  the  first  of 
May,  1849,  shall  be  placed  upon  the  calendar  o{  the  supreme  court  in 
the  city  of  New  York,  and  which  shall  be  i7i  readiness  for  hearing  on 
questions  of  laiv  only,  or  are  equity  cases.  That  the  cause  was  not  in 
readiness  for  a  hearing  when  transferred  is  clear  ;  because  the  appellant 

1  The  reporter's  statement  of  the  case  and  a  part  of  Judge  Gardiner's  opinion  are 
omitted. 


76  EFFECT    OF   ADJECTIVE    LAW. 

had  distinctly  put  in  issue,  by  his  answer  to  the  complaint,  the  repre- 
sentative character  of  the  respondents.  That  fact  was  indispensable  to 
the  relief  sought,  and  must  be  established  before  there  could  be  a  decree 
that  the  defendants  interplead.  Again,  the  decree  recites  that  the 
cause  was  heard  on  the  pleadings,  and  the  documentary  proofs  taken 
at  the  hearing  in  the  superior  court.  The  suit,  therefore,  was  neither 
"  in  readiness  for  hearing  "  in  the  supreme  court,  nor  did  its  determi- 
nation involve  "  questions  of  law  only." 

The  remaining  question  is,  was  it  an  equity  case,  within  the  mean- 
ing of  the  above  section  ?  The  69th  section  of  the  code  declares,  that 
the  distinction  between  actions  at  law  and  suits  in  equity,  and  the/oj-ms 
of  such  actions  and  suits,  shall  be  abolished  ;  and  thereafter  there  should 
be  one  form  of  action  for  the  protection  of  private  rights,  &c.,  which 
should  be  denominated  a  "civil  action."  The  preamble  to  the  act 
declares,  "that  it  is  inexpedient  that  the  distinction  between  legal  and 
equitable  remedies  should  be  longer  continued. "  This  was  the  great 
object  to  be  obtained  by  those  who  framed  and  those  who  adopted  the 
code ;  and  it  should  be  kept  steadily  jn  view  by  those  who  are  called 
upon  to  interpret  and  apply  its  provisions. 

The  legislature  by  the  section  above  quoted,  sought  to  accomplish 
the  object  indicated  in  the  preamble,  by  abolishing  the  formal  distinc- 
tion between  law  and  equity.  They  were  to  be  blended  and  formed 
into  a  single  system,  which  should  combine  the  principles  peculiar  to 
each,  and  be  administered  thereafter,  through  the  same  forms,  and 
under  the  same  appellation.  After  ordaining  a  new  name  for  all  pro- 
ceedings to  be  thereafter  instituted,  for  the  redress  of  private  grievances, 
the  legislature  could  not  have  intended  to  annul  their  own  work  by 
another  provision  in  the  same  act,  and  forming  a  part  of  the  same  sys- 
tem. The  code  took  effect  in  July,  1848.  It  was  amended  in  1849,  when 
the  forty-seventh  section  was  made  part  of  it,  and  the  whole  was  then 
adopted  as  a  single  act  of  legislation.  The  statute  did  not  interfere 
with  suits  commenced  prior  to,  and  pending  on  the  first  of  Juh-,  1S48  ; 
nor  in  general,  with  the  former  practice  applicable  to  them.  They 
were  known  and  distinguished  under  the  old  system,  as  suits  at  law  and 
equity  cases,  and  they  were  thus  designated  under  the  new.'  The 
phrase  "equity  cases, "  therefore,  occurring  in  the  forty-seventh  sec- 
tion, must  be  confined  to  suits  in  equity  commenced  prior  to  July,  1848, 
and  then  pending  in  the  supreme  court.  The  accumulation  of  causes 
of  this  character  in  the  former  court  of  chancery,  and  the  embarrassed 
condition  of  the  new  courts,  particularly  those  in  the  first  district,  in 
consequence  of  their  transfer  to  them,  was  notorious  ;  and  one  great 
object  in  creating  a  new  branch  of  the  superior  court  was,  to  relieve 
the  supreme  court  of  that  district  from  the  burden  of  investigating  and 
determining  causes  which  were  not  properly  their  own.  The  forty- 
seventh  section  was  designed  as  a  remedy  for  the  difficulty  and  framed 

1  Sess.  Laws  1849,  p.  705,  'i  2 :  706,  g  3. 


GILES   z:    LYON.  77 

accordingly.     It  is  in  terms  limited  to  suits  ai  issue  at  the  passage  of 
the  act,  of  which  it  is  a  part. 

This  in  effect,  would  confine  the  operation  of  the  provision  to  suits 
in  equity,  pending  on  the  first  of  July,  1848,  as  very  few  cases  under 
the  new  system,  would  have  been  commenced  and  put  at  issue,  during 
the  intervening  period.  But  however  this  might  have  been,  they  were 
not,  "  equity  cases. "  None  thus  distinguished  could  be  commenced, 
put  at  issue,  or  upon  the  calendar,  after  the  first  of  July.  ^  There  could 
be  no  complainant — the  distinctive  appellation  of  the  prosecuting  party 
under  the  old  system  of  practice."  By  the  construction  suggested  the 
fortj'-seventh  section  is  sensible  and  consistent  with  the  subsequent 
provisions  and  the  general  design  of  the  statute. 

On  the  other  hand,  if  "  equity  cases,"  as  the  respondents  insist,  is 
held  to  include  all  suits  in  which  the  relief  sought  is  of  an  equitable 
character,  the  legislature  are  made  to  confer  a  power  upon  the  supreme 
court,  by  reviving  a  distinction  and  adopting  a  nomenclature  in  one 
section,  which  they  had  expressl}'  abolished  in  another  of  the  same 
statute.  A  repugnancy  so  absolute  between  different  parts  of  the  same 
system,  should  be  avoided  if  possible.  We  think  it  may  be,  and  are 
all  of  opinion  that  the  authority  of  the  supreme  court,  under  the  forty- 
seventh  section,  is  limited  to  equity  cases  commenced  under  the  former 
practice ;  that  they  consequently  had  not  the  right  to  divest  them- 
selves of  jurisdiction  in  the  present  case,  or  to  confer  it  upon  another 
tribunal. 

The  judgment  of  the  superior  court  must  therefore  be  reversed,  and 
the  cause  remitted  to  the  supreme  court  for  further  proceedings. 

Judgment  reversed. 

1  §  69.         2  ^  70. 


v/ 


78  EFFECT  IN   ADJECTIVE   LAW. 

II.    THE    CIVIL   ACTION   AND   THE   SPECIAL   PROCEEDING. 

The  Original  Terms  of  the  Statute. 

New  York,  Code  of  1849  :  ^  Remedies  in  the  courts  of  justice  are 
divided  into  i.  Actions,  2.  Special  proceedings.  (§  i.)  An  action  is 
an  ordinary  proceeding  in  a  court  of  justice,  by  which  a  party  prose- 
cutes another  party  for  the  enforcement  or  protection  of  a  right,  the 
redress  or  prevention  of  a  wrong,  or  the  punishment  of  a  public  offence, 
(g  2.)     Every  other  remedy  is  a  special  proceeding.     (§3.) 

The  Present  Terms  of  the  Statute 

New  York:  The  word  "  action,"  as  used  in  the  New  Revision  of  the  Statutes, 
when  applied  to  judicial  proceedings,  signifies  an  ordinary  prosecution,  in  a  court 
of  justice,  by  a  party  against  another  party,  for  the  enforcement  or  protection 
of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  punishment  of  a  public 
offence.  {Code  of  Civ.  Pro.  §3333)  Every  other  prosecution  by  a  party,  for 
either  of  the  purposes  specified  in   the  last  section,    is  a   special   proceeding. 

{lbid%  3334.) 

California:  Judicial  remedies  are  such  as  are  administered  by  the  courts  of 
justice,  or  by  judicial  officers  empowered  for  that  purpose  by  the  constitution 
and  statutes  of  this  state.  ( Code  Civ.  Pro.  §  20. )  These  remedies  are  divided 
into  two  classes:  i.  Action;  and  2.  Special  proceedings.  {Ihid  §  21.)  An  action 
is  an  ordinary  proceeding  \and  thence  {%%  22,  23)  an   in  the  New  York  Code  of 

1849,  §§2,  3]- 

Kentucky:    Civil   cases  are    actions  or  special    proceedings.       {Civ.    Co.   of 

Prac.  §  I.) 

A  civil  action  is  a  demand,  by  pleadings,  in  a  court  of  justice,  for  the  enforce- 
ment of  an  alleged  right  of  a  plaintiff  against  a  defendant.  {Ibid  §  2.)  Every 
other  civil  case  is  a  special  proceeding.      (Ibid   §  3.) 

//      Iowa:  Every  proceeding  in  a  court  is  an  action,  and  is  civil,  special  or  crim- 
/inal.     (Code,  1897,  §  3424-) 

/  A  civil  action  is  a  proceeding  in  a  court  of  justice  in  which  one  party,  known 
/as  the  plaintiff,  demands  against  another  party,  known  as  the  defendant,  the 
enforcement  or  protection  of  a  private  right,  or  the  prevention  or  redress  of  a 
private  wrong.  It  may  also  be  brought  for  the  recovery  of  a  penalty  or  forfeit- 
ure.    Every  other  proceeding  in  a  civil  case  is  a  special  action.     (Ibid  %  3425.)- 

WiscoNsiN-  [As  in  Nem  York  Code  o/ 1849,  ^§  i,  2,  3]  (Wis.  Stats.  1898, 
§§  2594,  2595,  2596). 

Kansas:  {As  in  New  York  Code  of  1849,  §§  i,  2,  3]  (Kan.  Oen.  Stats.  1897, 
Code  of  Civ.  Pro.  %  2). 

North  Dakota:  [As  in  New  York  Code  of  1849,  §§  i.  2,  3]  (Rev.  Codes, 
N.  D.,  1895,  §§  5155,  5156,  5157)- 

South  Dakota:  [As  in  New  York  Code  of  1849,  §§  i,  2,  3J  (Annotated 
Stats.  8.  D.,  1899,  §§  6010,  6011,  6012). 

1  There  was  an  earlier  form,  of  one  year's  duration,  in  the  New  York  Code  of  1848  (§§  i, 
2,  3),  where,  instead  of  the  definition  of  "  action  "  as  "a«  ordinary  proceeding  in  a  court  of 
justice  by  which,  clc,"  it  was  declared  that  an  action  "«  a  regular  judicial  proceeding  in 
which  "  etc.,  as  in  this  amendment  of  1849. 

2  "Special  proceeding,"  in  the  code  of  1873,  3  2506. 


BARGER   V.    COCHRAN.  79 

North  Carolina:  \As  in  New  York  Code  of  1849,  ^§1,2,  3,  with  the  addi- 
tion of  the  phrase  '' or  prevention  "  after  the  word  "punishment  "J  [S.  ('.  Code, 
1883,  §45  125,  126,  127). 

Arkansas:  Remedies  in  civil  cases  are  divided  into  two  classes:  First.  Ac- 
tions.     Second,  Special  proceedings.     {Digest  of  Stats.  1894,  §  5601.) 

A  civil  action  is  an  ordinary  proceeding  in  a  court  of  justice  by  one  party 
against  another  for  the  enforcement  or  protection  of  a  private  right,  or  the 
redress  or  prevention  of  a  private  wrong.  It  may  also  be  brought  for  the  recov- 
ery of  a  penalty  or  forfeiture.     (Ibid,  §  5602.) 

Every  other  remedy  in  a  civil  case  is  a  special  proceeding.     (Tbid  §  5603.) 

South  Carolina:  [As  in  New  York  Code  of  1849,  §§  i,  2,  3J  [Rev.  Stats., 
8.  C,  1893,  §g  I,  2,  3). 


BARGER  V.  COCHRAN. 


Supreme  Court  of  Ohio,  December  Term,  1864.         .    n    u  -//  '^ 


Green  &  Pctin,  for  petitioner.  (aA^        'yj\/ 


[.5  o.  s.  460.]  v^^  y 

The  case  is  stated  in  the  opinion  of  the  court.  ^  yv^     Av^ 


Milton  S.  Clark  and  R.  D.  McDougal,  for  defendant.  "      ^^ 

Brinkerhoff,  C.  J. — This  is  a  petition  filed  in  the  court  of  common 
pleas,  for  partition  under  the  statute ;  and  is  not  a  civil  action  under  the 
code,  in  the  nature  of  a  bill  in  chancery,  for  partition.  After  decree  in 
the  common  pleas,  it  seems  that  all  the  steps  necessary  to  perfect  an 
appeal  from  that  court  to  the  district  court  were  duly  taken,  and  the 
case  was,  in  the  district  court,  reserved  for  decision  here.  No  question 
seems  to  have  been  made  in  the  district  court,  and  ntjne  has  been  made 
b}'  counsel  here,  as  to  whether  an  appeal  lies  in  such  a  case.  But,  if 
an  appeal  does  not  lie,  we  have  no  jurisdiction  of  the  case. 

By  the  fifth  section  of  the  act  of  April  12,  1858,  "  to  relieve  the  dis- 
trict courts,"  etc.,  the  right  of  appeal  is  confined  to  "final  judgments, 
orders,  or  decrees  in  civil  actio?is,  in  which  the  parties  have  not  the 
right,  by  virtue  of  the  laws  of  this  state,  to  demand  a  trial  by  jurj',  and 
interlocutory  orders  dissolving  injunctions  rendered  by  any  court  of 
common  pleas  in  this  state  in  which  it  has  original  jurisdiction. "  ' 

The  term   "civil   action,"  embraces  only  such  cases  as  were,  before  I 
the  enactment  ot  the  code  ot  cTvil  procedure,  known  as  "  actions  at  law  "  i 
and  "sujt,'^  in  pqnjty  ;"-  but  a  petition  for  partition  under  the  statute, 
was  never  recognized  either  as  an  action  at  law  or  a  suit  in  equity,  and 
is  not,  therefore,  a  civil  action  under  the  code  of  civil  procedure.     It  is 
a  special  statutory  proceeding,   the  distinction   between   which   and  a  ' 
civil  action  is  everywhere  recognized  by  the  code.     The  case  of  Knoup  , 

1  4  Curwen's  St.  30S8.  2  Code,  sec.  3. 


80  EFFECT   IN   ADJECTIVE    LAW. 

f.  Piqua  Bank,  '  and  Mack  v.  Bonner"  arose  under  statutes  differing  in 
phraseology  from  the  one  now  in  force  on  the  subject  of  appeal  from 
the  common  pleas  to  the  district  courts,  and  do  not  applj-  to  the  ques- 
tion here  presented.  Appeal  dismissed. 
Scott,  Day,  White,  and  Welch,  JJ.,  concurred. 


LINTON  :•.  LAYCOCK. 
Supreme  Court  Commission  of  Ohio,  December  Term,  1877. 

[33  O.  S.  128.] 

The  suit  was  brought  to  determine  the  plaintiff  's  right  to  an  undi- 
vided seventh  part  of  212  acres  of  land,  and  to  obtain  partition  and 
an  account  for  rents. 

Day,  J. — Two  questions  are  presented  for  our  determination  :  First. 
Was  the  case  appealable  ?  If  so — Second.  Was  the  plaintiflF  a  devisee 
under  the  will  ? 

I.  The  statute  under  which  the  appeal  was  taken  provides  that 
1''  civil  actio7is  "  in  which  neither  party  has  the  right  to  demand  a  trial 
by  jury  may  be  appealed.  A  proceeding  under  the  special  act  to  provide 
for  the  partition  of  real  estate,  not  being  a  civil  action,  is  not  appeal- 
able.^ 

But  this  case  is  not  a  proceeding  under  that  act.  Its  provisions  have 
not  been  pursued,  nor  are  they  adequate  for  the  object  sought  to  be 
attained.  The  code  of  civil  procedure  has  been  pursued  in  the  case, 
and,  in  every  respect,  it  purports  to  be  a  civil  action.  Moreover,  the 
special  statutory'  mode  of  obtaining  partition,  never  was  exclusive  of 
that  in  equity,  b}-  civil  action  under  the  code.  Partition  was  always  a 
subject  of  equity  jurisdiction,  especially  where  the  case  involved  the 
settlement  of  questions  peculiarly  cognizable  in  courts  of  equity. 

The  case  involved  the  construction  of  a  will,  upon  which  the  right  to 
the  partition  sought  depends,  and  for  an  account  of  rents,  if  the  plaintiff 
was  entitled  to  partition.  It  was  not  a  case  for  partition  merely,  and 
therefore  could  not  properly  have  been  brought  under  the  partition  act. 
It  was,  then,  a  proper  case  in  which  to  invoke  the  equitable  aid  of  the 
court  in  procuring  the  partition  and  account  sought. 

The  action  being  for  partition  and  an  equitable  account  incident 
thereto,  and  not  for  the  recover^'  of  money  or  specific  real  property-, 
neither  party  had  the  right  to  demand  a  jury  trial :  therefore,  the  case 
was  appealable.* 

I  I  Ohio  St.  603.  «  3  Ohio  St.  366. 

S  Citing  Barger  v.  Cochran.  15  O.  S.  460.  ■♦  Part  of  the  case  is  omitted. 


CHINN   V.    TRUSTBES,    KTC.  81 

CHINN  V.  TRUSTEES,  ETC. 

Supreme  Court  Commission  op  Ohio,  December  Term,  1877. 

[32  O.  S.  236.] 

Error  to  the  District  Court  of  Lawrence  County. 
W.  H.  Enoch,  for  plaintiff'. 

Neal  &  Oicn'ington,  for  defendants. 

Scott,  J  — The  plaintiff  in  error  applied  to  the  District  Court  of 
Lawrence  county  for  a  writ  of  mandamus,  commanding  the  defend- 
ants in  error  to  execute  and  deliver  to  him  a  township  bond  of  said 
township  of  Fayette,  for  one  hundred  dollars,  in  compliance  with  the 
requirements  of  the  act  of  April  16,  1867,  "to  authorize  and  require 
the  payment  of  bounties  to  veteran  volunteers, "  and  the  acts  amenda- 
tory thereof. 

The  facts  stated  in  his  relation,  were  such  as  to  bring  his  case,  prima 
facie  at  least,  within  the  purview  of  said  statute,  and  to  entitle  him  to 
such  bond.  He  avers  in  his  relation  that  since  the  year  1867,  he  has 
often  requested  the  trustees  of  said  township,  and  their  successors  in 
office,  including  the  present  board  of  trustees,  to  draw,  perfect,  and 
deliver  to  him  such  bond,  which  they  have  refused,  and  still  refuse 
to  do 

His  application  was  made  to  the  district  court,  August  9,  1873.  The 
defendants  answered,  and  for  their  first  defence  alleged 

"that  the  cause  of  action  on  which  plaintiff's  application  is  based,  accrued  to 
hira  against  the  defendants,  more  than  six  years  prior  to  the  commencement  of 
this  suit,  by  the  said  plaintiff,  and  so,  they  say  that  said  action  is  barred  by  the 
statute  of  limitations." 

To  this  defence  the  relator  demurred.  The  court  overruled  his  demurrer, 
and  thereupon  dismissed  the  case  at  his  costs.  For  alleged  error  in  this 
action  of  the  court  below,  the  plaintiff  here  prosecutes  his  petition  in 
error. 

The  code  of  civil  procedure  limits  the  time  within  which  an  action 
can  be  brought  ' '  upon  a  liability  created  by  statute,  other  than  a  for- 
feiture or  penalty,  "  to  six  years.  1  This  provision  is  found  in  title  2,  of 
the  code,  the  object  of  which  is  to  define  and  prescribe  "  the  time  of 
commencing  civil  actions.  "  The  civil  action  of  the  code  is  a  substitute 
for  all  such  judicial  proceedings  as,  prior  thereto,  were  known,  either 
as  actions  at  law  or  suits  in  equity. ^  By  section  8,  the  limitations  of 
this  title  are  expressly  confined  to  civil  actions.  But  proceedings  in 
mandamus  were  never  regarded  either  as  an  action  at  law  or  a  suit  in 
equity,  and  are  not  therefore  a  civil  action  within  the  meaning  of  the 
code.     Mandamus  is  an  extraordinary  or  supplementary  remedy,  which 

1  .Sec.  14.  2  Sec.  3. 


82  EFFECT   IN   ADJECTIVE   LAW. 

can  not  be  resorted  to  if  the  party  has  any  other  adequate,  specific 
remedy.  The  code  provides  for  and  regulates  this  remedy,  but  does 
not  recognize  it  as  a  civil  action.  It  declares  that  the  writ  of  mandamus 
may  not  be  issued  in  any  case  where  there  is  a  plain  and  adequate 
remedy  in  the  ordinary  course  of  the  law.^  And  in  section  577,  it  pro- 
vides that :  ' '  No  other  pleading  or  written  allegation  is  allowed  than 
the  writ  and  answer.  " 

These  are  the  pleadings  in  the  case,  and  have  the  same  effect,  and  are 
to  be  construed,  and  may  be  amended  in  the  same  manner  as  plcadhigs 
in  a  civil  action  ;  and  the  issues  thereby  joined  must  be  tried  and  the 
further  proceedings  thereon  had  in  the  same  manner  as  in  a  civil  action. ' ' 
This  language  clearly  implies  that  mandamus  is  not  comprehended 
within  the  civil  action  of  the  code,  to  which  alone  the  limitations  of  title 
2  are  applicable  as  an  absolute  bar. 

In  holding  otherwise,  we  think,  the  court  below  erred,  and  its  judg- 
ment must,  therefore,  be  reversed. 

We  do  not,  however,  mean  to  intimate  that  because  there  is  no  statu- 
tory limitation  of  the  time  within  which  a  writ  of  mandamus  may  be 
obtained  in  this  state,  a  party  maj^  delay  his  application  therefor  at 
pleasure,  without  detriment  to  his  rights.  Where  the  relator  has  slept 
upon  his  rights  for  an  unreasonable  time,  and  especially  if  the  delay 
has  been  prejudicial  to  the  defendant,  or  to  the  rights  of  other  persons, 
the  court,  in  the  exercise  of  a  sound  discretion,  may  well  refuse  the 
writ.  In  a  case  in  New  York,  where  the  relator  sought,  by  mandamus, 
to  have  judicial  proceedings  .set  aside,  the  court  refused  the  writ, 
because  of  an  acquiescence  in  the  proceedings  for  one  year.^  In  another 
case,  it  was  held  that  mandamus  might  be  brought  within  the  time 
fixed  for  the  limitation  of  other  similar  or  analogous  remedies.^  The 
justice  and  equity  of  this  rule  would,  in  many  cases,  be  questionable.* 
What  laches,  in  the  assertion  of  a  clear  legal  right,  would  be  sufficient 
to  justify  a  refusal  of  a  remedy  by  mandamus,  must  depend,  in  a  great 
measure,  on  the  character  and  circumstances  of  the  particular  case. 

These  circumstances  may  often  be  fully  developed  only  on  the  trial 
of  the  case,  as  the  .statute  permits  no  reply  to  the  answer  of  the  defend- 
ant. For  the  purpose  of  the  demurrer,  in  this  case,  the  relator  admits 
a  delay  of  six  years.  But  for  all  other  purposes,  such  delay  is  to  be 
regarded  as  denied.  How  long,  and  under  what  circumstances,  the 
relator  has  slept  upon  his  rights,  and  what  prejudice,  if  any,  has 
resulted  therefrom  to  the  defendants,  or  to  other  persons,  are  facts  to 
be  ascertained  upon  the  trial  of  the  case,  and  considered  by  the  court, 

1  Sec.  570. 

2  The  People  ex  rel.  v.  Seneca  Common  Pleas  (1829),  2  Wend.  264  ;  Of.  People  ex  rel.  v. 
Common  Council  of  Syracuse  (1879),  78  N.  V.  56;  People  v.  Supervisors  (1852),  12  Barb. 
446,  450. — Ed. 

3  The  People  n.  The  Supervisors  of  Westchester,  12  Barb.  446. 

4  Moses  on  Mandamus,  190. 


CHINX    v.    TRUSTEES,    ETC.  83 

in  deterraininj:^  whether  such  laches  is  disclosed,  as  to  justify  a  denial 
of  the  remedy  souj^ht. 

The  judgment  of  the  court  below  will  be  reversed,  the  demurrer  of 
plaintiff  to  the  first  defence  of  the  defendants  be  sustained,  and  the 
case  remanded  to  the  district  court  for  trial  upon  its  merits.^ 

Judgment  accordingly. 

NOTE  AS   TO   THE   SPECIAL    PROCEEDING. 

An  occasional  departure  \)y  the  codes  from  their  general  principle  of 
one  form  of  action  was  to  be  expected.  The  novel  or  peculiar  nature  of 
some  substantive  rights  may  naturally  be  reflected  in  statutory  pro- 
ceedings specially  designed  for  their  enforcement  or  protection  ;  ex  i 
parte  or  non-controversial  proceedings  also  may  as  naturally  result  in  I 
peculiar  forms  of  procedure.  Such  exceptions  appear  in  all  the  codes. 
But  most  of  them  go  further,  and  permit  exceptions  which  are  appar- 
ently tinnecessary  or  unnatural.  In  more  than  one  instance,  it  is  as  if 
the  reformers  had  grown  weary  in  well  doing,  and  had  left  unfinished 
their  task  of  establishing  uniformity  in  our  judicial  procedure. 

For  these  exceptions  the  name  given  by  the  New  York  Act  of  1848 
and  several  other  codes,  the  name  of  "  special  proceedings,  "  has  come 
into  very  general  use  ;  and,  as  in  these  codes,  such  proceedings  are  com-  |.  ^^ ' 
monly  grouped  as  a  sole  co-ordinate  class  with  "actions."  But  in  "  u^lt^^, 
other  codes  there  is  no  express  recognition  of  this  classification,  such  /f^^  J^** 
civil  proceedings  as  do  not  come  within  the  definition  of  the  civil  action  L^^  (t 
being  left  at  large,  without  a  common   name.     Whether  so  named  or  ^/^ 

not,  the  two  classes  are  separated  by  a  line  which  is  often  arbitrary', 
sometimes  faintly  drawn,  and  sometimes  of  little  moment.  There  are 
however  cases  in  which  the  distinction  is  of  high  consequence.  For 
not  only  do  the  rules  of  practice  differ,  more  or  less,  in  regard  to 
motions  and  orders,  depositions,  amendments,  the  service  of  papers, 
etc.,  as  the  suitor  brings  a  civil  action  or  a  special  proceeding,  but  in 
some  states  at  least  much  more  substantial  differences  exist  between  the 
two  classes — as  in  the  right  of  appeal,  the  application  of  the  statute  of 
limitations. 

To  a  very  considerable  extent  there  is  nothing  in  the  nature  of  things 
which  requires  a  materially  different  mode  of  pleading  for  the  Special 
Proceeding  than  for  the  Civil  Action.  And  so  it  has  come  about  that  the 
codes  show  a  great  diversity  in  their  enumeration  of  "  Special  Proceed- 
ings."  A  complete  list  of  those  in  any  one  state  would  have  little 
exactness  in  other  code  states.  Not  only  so,  but  in  one  and  the  same 
state  it  has  sometimes  happened  that  a  proceeding  which  was  deemed 

1  "A  proceeding  under  section  1254  of  the  Code  upon  appeal  from  the  assessment  of 
damages  by  a  sheriff's  jury,  for  private  property  taken  by  a  railway  company  for  its  right, 
of  way,  is  a  special  proceeding,  and  is  not  subject  to  the  operation  of  section  2529  of  the 
Code,  limiting  the  time  for  the  commencement  of  actions  to  recover  for  injuries  to  property 
to  five  years  after  the  cause  of  action  accrued."  Hartley  v.  Keokuk  &  Northwestern  Rail- 
way Co.  (1S92),  85  Iowa  455,  456. 


<v^ 


/ 


\ 


84  EFFECT    IN   ADJECTIVE    LAW. 

to  be  "  special  "  when  the  code  was  enacted,  and  is  still  named  among 
its  "special  proceedings,"  has  in  effect  become,  through  statutory 
amendments,  a  "civil  action."  Moreover,  a  civil  action  may  branch 
out  into  special  proceedings  ;  and,  on  the  other  hand,  there  are  special 
proceedings  which  at  one  stage  or  another  are  "transmuted  into 
actions,  "  or  brought  within  the  regulations  applicable  to  civil  actions 
by  reason  of  special  enactments  which,  with  the  innocent  intention  of 
simplifying  the  procedure,  declare,  in  one  form  or  another,  that  a  spe- 
cial proceeding  shall  be  from  such  a  point,  or  in  such  a  respect,  subject 
to  the  provisions  regulating  civil  actions.^ 

^  The  tendency  of  late  j^ears,  however,  both  in  code  legislation  and 
code  decisions,  is  evidently  towards  an  assimilation  of  the  special  pro- 
ceeding with  the  civil  action.  The  commissioners  who  framed  the  New 
York  Revised  Statutes  of  1876,  made  it  their  rule  to  convert  the  most 
important  special  proceedings  into  actions  if  this  could  be  done  con- 
veniently' ;  when  such  a  course  was  not  open,  the  provisions  which  had 
embraced  the  civil  action  alone  were  applied,  as  far  as  practicable,  to 
special  proceedings.^  Similar  changes  in  the  interest  of  uniformitj^ 
have  been  made,  to  a  greater  or  less  extent,  in  other  code  states,  and 
more  are  to  be  expected. 

Lists  of  special  proceedings  are,  therefore,  to  be  taken  with  some 
allowance,  even  in  states  to  whose  codes  they  purport  to  have  special 
reference.  But  subject  to  this  caution,  the  following  instances  will 
serve  to  indicate  the  general  character  of  the  whole  group  of  remedies 
which  lie  outside  the  range  of  the  civil  action. 

N^  The  earlier  codes  generally  did  not  seek  to  bring  the  great  writs  of 
mandanuis,  prohibition,  certiorari,  habeas  corpus,  and  qjw  warrnnfn 
within  the  definition  of  the  civil  action,  but  for  the  time  being  left 
them,  with  other  proceedings,  as  they  were.^     And  excepting  quo  ivar- 

1  Of.  Austin  Abbott's  note  to  McIyCan  ?■.  Jephson  (1890),  26  Abb.  N.  C,  40,  44,  with  special 
reference  to  the  New  York  Code. 

2  See  Throop's  note  to  N.  Y.  Code  of  Civil  Procedure,  g  3333,  ed.  1890. 

■'!  The  hesitation  of  the  reformers  here  was  illustrated  in  the  framing  of  the  Ohio  code, 
five  years  after  the  enactment  of  the  code  of  184S  :  "Until  the  legislature  shall  otherwise 
provide,  this  code  shall  not  affect  proceedings  on  habeas  corp^is,  quo  7varranio,  or  to  assess 
damages  for  private  property  taken  for  public  uses  ;  nor  proceedings  under  the  statutes  for 
the  settlement  of  estates  of  deceased  persons  ;  nor  proceedings  under  statutes  relating  to 
dower,  divorce,  or  alimony  ;  or  to  establish,  or  set  aside  a  will  ;  nor  proceedings  under  stat- 
utes relating  to  apprentices,  arbitration,  bastardy,  insolvent  debtors  ;  nor  any  special  statu- 
torv  remedy  not  heretofore  obtained  by  action ;  but  such  proceedings  may  be  prosecuted  under 
the  code,  whenever  it  is  applicable."  (Sect.  604  of  Commissioners'  draft.)  The  provision  was 
followed  by  this  comment  from  the  commissioners  :  "There  are  a  great  many  special  pro- 
ceedings given  by  statute.  These  will  continue,  where  they  are  not  expressly  modified  or 
abolished.  We  have  enumerated  some  of  them,  such  as  habeas  corpus,  the  proceedings  to 
assess  damages  for  private  property  taken  by  corporations,  and  some  others.  These  pro- 
ceedings are  very  numerous.  We  have  mentioned  but  a  few  of  them.  They  include  all 
statutory  remedies  and  proceedings,  not  heretofore  obtained  bj'  an  ordinary  action.  It  was 
impracticable  and  unnecessary  to  mention  all  of  them  in  the  code.  We  enumerate  a  few, 
chiefly  for  illustration  ;  we  might  enumerate  others  for  the  same  purpose,  such  as  the  act 
relating  to  common  carriers,  the  act  for  executing  contracts  for  land,  where  a  party  has 
died,  the  act  relating  to  mechanics'  Hens,  and  the  like."  Note  to  Sect.  605,  Commi.ssioners' 
report  on  Ohio  Code.    (1853). 


CHINN   :•.    TKUSTHHS,    ETC.  85 

ranto  which  is  often  cxpressh-  designated  in  tlie  code  as  an  "  action,  "  ' 
these  extraordinary  remedies  are  still  commonly  classed  with  Special 
Proceedings. 

The  following  are  commonly  differentiated  by  the  terms  of  the  codes 
.  from  the  Civil   Action,    and  stated   therefore  as  Special  Proceedings: 
(,  /• '  proceedings  under  tlu-  rii^iit  of  eniiiiLiit  domain   for  tlie  acquisition  of 
real  estate,^''{)roceeding  to  alter  the  grade  of  a  street,  to  drain  land,  to 
V^j  dissolve  a  corporation,  orTo-change  the  name  of  a  persoiv  proceedings 
^  )for  divorce  or  ajiniony,  or  jd  assign  dower,  proceedings  to  submit   a 
controversy"  without  action',  probate  proceedings^  proceedings  in  statu- 
tory arl)itration,  ancj^flsummar}"  proceedings  to  confess  judgment,  to 
obiain  possession  of  real  property,  or  to_ discharge  one  imprisoned  on 
civil  process. 

The  term  Special  Proceeding  has  been  held  to  include  al.so  proceed- 
ings to  enforce  tlie  statutory  liens  of  mechanics  and  others  ;  ^  proceed- 
ings in  New  York  to  remove  a  testamentary  guardian,-'  or  by  a  receiver 
of  taxes  to  compel  paj'ment  of  a  personal  tax,*  or  in  the  statutory  ref- 
erence of  a  claim  against  the  estate  of  a  decedent ;  *  an  application  by  a 
person  not  a  party  to  an  action  of  replevin,  to  be  made  a  part}',  under 
the  Wisconsin  statute  ;  ^  a  petition  by  an  administrator  for  an  order  to 
sell  real  estate  to  pay  debts,  under  the  statutes  of  Indiana  ; "  proceed- 
ings in  Iowa  to  disbar  an  attorney ;  •*  proceedings  in  California  with 
respect  to  escheated  estates.  ' 

1  Cf.  state  ex  ret.  v.  Thompson  (1878),  34  O.  S.  365,  366;  Reynolds  v.  The  State  ex  rel. 
(187S),  61  Ind.,  392,  402. 

2  In  Hallahan  v.  Herbert  ( 1874)  57  N.  Y.,  409,  it  was  held  that  the  fundamental  provision 
of  the  codes  that  "  every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  inter- 
est "  did  not  ap^ly  to  a  special  proceeding  under  the  New  York  mechanics'  lien  law  of  1S51. 
but  that  in  case  of  an  assisjmnent  by  a  lienor  before  the  commencement  of  such  a  proceed- 
ing, it  was  properly  prosecuted  in  his  name  for  the  benefit  of  the  assignee. 

3  In  re  King  (1SS6),  42  Hun  (N.  Y.)  607. 

4  Mcl,ean  i^.Jephson  (1890),  26  Abb.  N.  C,  40. 

5  Paddock  v.  Kirkham  fiS86),  102  N.  Y.,  597. 

6  Carney  v.  Gleissner  (1SS5),  62  Wis.,  493,  and  see  Morse  v.  Stockman  (1S85),  65  Wis.,  36. 

7  Seward  :•.  Clark  (1S79),  67  Ind.,  289. 

8  State  V.  Clark  (1S77),  46  Iowa,  155. 

9  Cal.  Code  of  Civ.  Pro.  §§  1269 — 1272. 


86  EFFECT   IN   SUBSTANTIVE   LAW, 


C.    Effect  of  the  Creation  of  the  One  Form  of  Civil  Action,  -with  Respect  to 
the  Distinctions  of  Substantive  Law. 

NOTE. 

Questions  as  to  the  practical  effect  in  our  law  of  the  statute  requiring 
one  form  of  civil  action  were  neither  few  nor  speedily  settled  ;  the  cases 
to  which  they  give  rise  flow  in  a  steady  stream,  from  shortly  after  the 
inauguration  of  code  pleading  down  to  the  present  da}'. 

The  main  cause  for  this  should  be  kept  in  mind  :  mrrjbnnulaix-fij-^ 
tern  of  actions  w^s  the  frameworl-  nhonf  wTiJ^Vi  r.iir  tinK^tantivp  law  wa.s 
built.  From  the  beginnings  of  English  law  until  but  yesterday  the 
forms  of  action  fixed  the  lines  of  our  whole  legal  theory-.  The  practi- 
tioner, English  or  American,  not  only  found  these  forms  established  in 
a  venerable  use,  he  daily  resorted  to  them  in  testing-  the  nature  of  a 
jrimarv"  legal  right  or  obligation.  They  dominated  his  view  of  the 
Law  of  Persons  and  the  Law  of  Things  ;  he  framed  his  definitions  of 
substantive  rights  according  to  the  distinctions  of  his  Law  of  Actions. 

With  the  statutory  abolition  of  the  distinction  between  actions  at 
law  and  suits  in  equity  and  the  forms  of  all  such  actions  and  suits,  it 
seemed  to  many  that  all  classification  in  our  law  was  swept  aside. 
"  The  rode,  "  declared  a  well  known  lawyer  in  one  of  the  earlier  code 
states,  writing  as  late  as  1855,  "reverses  the  scientific  process,  ignores 
all  classification,  and  throws  the  whole  science  again  into  a  single  class^ 
into  a  multitude  of  individual  facts,  without  any  law  of  aggregation  or 
arrangement.  The  law  started  in  the  remote  past  from  this  point,  and 
has,  under  the  so-called  spirit  of  reform,  but  really  of  destruction,  again 
returned  to  it.  "  ^ 

It  has  come  about,  therefore,  that  questions  as  to  the  practical  effect 
of  establishing  one  form  of  civil  action  in  our  law  very  often  look 
beyond  the  limits  of  procedure,  properly  so  called,  and  consider  dis- 
tinctions between  substantive  rights.  Granted  that  the  distinction 
between  actions  at  law  and  suits  in  equity  is  abolished,  is  the  distinc- 
tion between  law  and  equity  abolished  ?  If  there  are  no  longer  ' '  equit- 
able actions  "  and  "legal  actions,"  as  distinct  classes,-  is  there  never- 
theless, as  a  practical  question  in  pleading,  a  material  distinction 
between  equitable  causes  of  action  and  legal  causes  of  actions  ?  If 
practitioners  need  not  now  distinguish  between  an  action  ex  delicto  and 
an  action  ex  contractu,  need  they  distiuguish  between  a  cause  of  action 

1  Nash,  PI.  &  Pr.  3,  referring  specially  to  the  Ohio  code  of  1853,  and  generally  to  the 
seven  codes  which  preceded  it.  See  also  Judge  Selden's  remark  in  Voorhis  v.  Childs'  Exe- 
cutor (1S58),  17  N.  Y.  354,  358  :  "It  is  supposed  by  some  that  it  was  intended  to  abolish  by 
the  codcall  distinction,  not  only  in  form  but  substance,  between  legal  and  equitable  actions  ; 
and  it  must  be  conceded  that  many  of  its  provisions  taken  by  themselves  might  seem  to  in- 
dicate such  an  intent." 

Erroneous  as  these  views  are,  they  still  serve  a  useful  purpose  in  emphasizing  the  proce- 
dural character  of  the  historic  distinctions  in  our  substantive  law. 

2  See  Giles  v.  Lyons  (1851),  4  N.  Y.  600. 


LINDEN  &  FRITZ  f.  HiCrBURN  &  WILLS,  ETC.  87 

e.r  delicto  and  a  cause  of  action  ex  contractu  f  Or,  in  general,  hnti  the 
breakin^i:  down  of  the  lines  of  separntion  hpt^^-epn  actions  f^ffV-rtf^rl  i'Ue^ 
distinctions  between  causes  of  action  f  And  if  these  distinctions  still 
endure,  what  effect,  if  any,  have  they  upon  the  scope  of  the  one  form 
of  action  ?  Is  the  new  civil  action,  thus  substituted  for  the  difTcrent 
actions  at  law  and  the  suit  in  equit>',  in  the  nature  of  a  vague  g^eneral 
formula  which,  once  uttered,  opens  the  door  to  any  relief  within  the 
facts  of  the  controversy  and  the  jurisdiction  of  the  trial  court  ?  Or  is 
there,  m  every  civil  action  under  the  codes,  a  theory  ofthejicLu>n,  to 
which  the  court  must  look  and  by  which  it  must  limit  the  relief  to  be 
granted  in  that  action,  even  if  the  facts  of  the  controversy  and  the 
jurisdiction  ol  the  court  would  permit  a  more  extensive  or  a  different 
j"eliei  ■''  "~~        " 

The  cases  which  follow,  while  of  one  general  class  with  those  already 
given,  bear  more  exactly  upon  such  questions  as  these. 


LINDEN  &  FRITZ  :-.   HEPBURN  &  WILLS,   IMPLEADED  WITH 

WEST. 


Supreme  Court  of  New  York,  December.   i8t;c.  ri>^ 

[5  HoviK  Pr.  1 88.] 


CM 


This  case  came  before  the  court  on  an  appeal  from  an  order  granting 
an  injunction,  and  on  another  appeal  from  a  judgment  in  favor  of  the 
plaintiffs  on  a  demurrer  to  the  complaint. 

The  case  made  by  the  complaint,  was  as  follows  :  J.  H.  Rosevelt 
leased  to  A.  &  F.  Roux  for  eight  years  from  May  i,  1845,  the  premises 
known  as  No.  478  and  480  Broadway,  New  York.  The  lease  was  on  the 
express  condition  that  the  premises  were  to  be  used  only  in  a  certain 
manner,  and  that  certain  enumerated  uses  should  not  be  made  of  them  ; 
and  there  were  covenants  against  making  any  alteration  in  the  build- 
ings, and  a  provision  for  re-entry  for  breaches  of  the  covenants.  In 
March,  1848,  A.  &  F.  Roux  transferred  the  lease  to  the  plaintiffs,  who 
demised  the  principal  part  of  480  Broadway  to  the  defendant  West,  for 
five  years  from  May  i,  1848.  West  covenanted  to  observe  and  keep  all 
the  conditions  in  Rosevelt 's  lease.  The  lease  to  West  reser\^ed  the  rent 
to  the  plaintiffs,  and  provided  for  their  re-entn,-  for  breaches  of  its  cov- 
enants. Hepburn  &  Wills  entered  under  W^est ;  and  the  defendants, 
or  some  of  them,  have  broken  the  conditions  of  the  lease  in  four  specified 
particulars.  The  plaintiffs  thereupon  claimed  that  the  lease  to  West 
had  become  forfeited,  and  prayed  for  judgment  as  stated  in  the  opinion. 
The  defendants  Hepburn  &  Wills  demurred,  and  the  judge  at  special 
term  gave  judgment  for  the  plaintiffs.     He  also  on  a  previous  motion, 


^•^^^ 


88  EFFECT   IN    SUBSTANTIVE    LAW. 

granted  an  injunction  order,  restraining  the  defendants  from  continuing 
some  of  the  inhibited  uses  of  the  premises. 
/.  Cochrane,  for  the  d-efendants. 
/.  M.  Knox,  for  the  plaintiffs. 

By  the  Court,  Sandford,  J. — The  only  ground  presented  by  the 
demurrer,  which  requires  any  serious  consideration  is,  that  no  right  of 
entry  exists  in  the  plaintiffs  ;  that  the  lease  executed  by  them  to  West 
operated  as  an  assignment  of  the  original  lease,  pro  tanto  ;  and  there 
being  no  reversionary  interest  in  the  plaintiff  they  can  not  recover. 
Whatever  the  effect  of  this  lease  might  be  as  between  West  and  the 
original  lessor  of  the  demised  premises,  we  have  no  doubt  that  as 
between  West  and  the  plaintiffs,  it  is  to  be  regarded  as  a  sub  lease,  and 
not  as  an  assignment  of  the  original  term.  The  right  to  re-enter  was 
reserved  to  the  plaintiffs,  and  suffices  to  enable  them  to  enter  for 
breaches  of  the  conditions,  although  there  be  no  reversion  remaining 
in  them.i  The  judgment  for  the  plaintiffs  on  the  demurrer,  must  be 
afi&rmed  with  costs. 

On  the  appeal  from  the  order  granting  the  injunction,  a  different 
question  arises.     The  complaint,   after  setting  forth  the  violations  of 
covenants  and  conditions  for  which  the  plaintiffs  seek  to  recover,  prays  for 
a  judgment  of  forfeiture  of  the  term  of  years  ;  that  the  defendants  be,  for 
that  cause,  dispossessed  ;  and  that  the  plaintiffs  be  put  into  possession  of 
the  premises.     It  then  prays  for  an  injunction  to  restrain  the  defend- 
ants from  making  alterations  in  the  buildings,  and  from  using  them 
for  retailing  liquors,  and  in  other  modes  prohibited  by  the  covenants 
in  the  lease.     The  forfeiture  and  re-entry  prayed,  are  the  relief  hereto- 
fore granted  in  the  action  of  ejectment  brought  for  the  recovery  of 
demised  premises.     The  injunction   asked,  is  purely  equitable  relief, 
heretofore  given  in  a  chancery  suit,  and  in  conformity  to  the  principles 
of  equity.     The  ejectment  brought  to  effect  a  re-entry  for  breaches  of 
the  condition  in  a  lease,  has  always  been  regarded  in  the  law  as  a  hard 
action — strictissimi  juris  ;  and  the  English  chancery  reports  abound  in 
cases  in  which  the  courts  of  equity  have  been  importuned  to  relieve 
tenants  against  the  forfeitures  claimed  in  such  actions.     A  proceeding 
like  that  before  us,  would  never  have  been  thought  of  under  the  system 
of  remedies  in  force  prior  to  the  code  of  procedure.     Equity  abhors  for- 
feitures and  always  relieves  against  them,  when  possible  to  do  so  ;  and 
no  man  would  have  ventured,  under  that  system,  to  ask  her  for  one  of 
her  most  benign  remedies,  while,  in  the  same  breath,  he  demanded  from 
her  a  rigorous  forfeiture  of  his  opponent's  estate,  in  the  subject  of  the 
controversy. 

Docs  the  code  of  procedure  make  any  change  in  this  respect  ?  Can 
a  plaintiff,  under  the  code,  ask  for  equitable  relief,  and  in  the  same  suit, 
demand  a  forfeiture  ?     We  are  clear  that  the  code  has  not  altered  the 

1  Doe,  ex  dem.  Freeman  v.  Bateman,  2  B.  &  .Md.,  168;  and  see  Kearny  t.  Post,  i  Sandf. 
105,  affirmed  on  appeal,  2  Comst.  394. 


LINL)1:n    61:    FRITZ   f.    HEPBURN    &    WILLIS,    ETC 


89 


rule.  It  has  abolished  the  distinction  between  legal  and  eciuitable 
remedies  ;  but  it  has  not  chang-ed  the  inherent  difference  between  legal 
and  equitable  relief.  Under  the.code  the  proper  relief,  whetherjegal  m- 
equital)le,  will  be  administered  in  the  same  fornijjf  proccedjng.  !n 
some  cases  alternative  relief  may  Vw*  prr^y^rl   nnrl   rtAJpf  Km  ^rr mt^-rl   in 


one  or  tJie  other  funn  :  in  which  case  an  action  at  law  was  necessary- 
before,  to  attain  the  one  form  and  a  bill,  in  equity  to  reach  the  other. 
A  suit  for  specific  performance  is  one  of  that  description.  But  we 
think  inconsistent  relief  can  no  more  be  asked  now  than  it  could  under 
the  old  system.  A  vendor  can  not  now  exhibit  a  complaint  demanding 
payment  of  an  installment  of  purchase  money  in  arrear,  and  also  a 
forfeiture  of  the  contract  of  sale,  and  re.storation  of  the  possession, 
even  if  the  contract  expressly  provided  for  such  payment  and  forfeit- 
ure. There  can  be  no  better  illu.stration  of  our  meaning  than  this  very 
case.  The  forfeiture  of  the  term,  is  a  relief  totally  inconsistent  wuth 
any  equitable  remedy.  The  lessor  may  pursue  his  remedy  for  a  re-entrj' 
and  possession  ;  or  he  may  proceed  for  an  injunction  and  damages, 
leaving  the  tenant  in  possession.  He  has  an  undoubted  option  to  do 
either.  He  can  not  do  both  an  once.  "  He  that  seeks  equity  must  do 
equitj', "  is  a  maxim  which  lies  at  the  foundation  of  equit}-  jurispru- 
dence, and  it  is  not  at  all  affected  by  any  change  of  remedies. 

We  imagine  that  a  much  broader  effect  has  been  claimed  for  the  abo- 
lition of  the  distinction  between  legal  and  equitable  remedies  than  was 
ever  intended  by  the  legislature.  The  first  section  of  the  code  shows 
what  was  intended  by  the  word  "remedies."  It  is  limited  to  actions 
and  special  proceedings,  and  the  declared  object  of  the  preamble  to  the 
code  is  simph^  to  abolish  the  distinction  between  legal  and  equitable 
actions.  There  is  no  ground  for  supposing  that  there  was  any  design 
to  abolish  the  distinction  between  the  modes  of  relief  known  to  the  law 
^s  legal  and  equitable,  or  to  substitute  the  one  for  the  other,  in  any 
case_.  Those  modes  of  relief,  the  judgment  or  the  decree,  to  which  a 
party,  upon  a  certain  state  of  facts,  was  entitled,  were  fixed  by  the  law 
of  the  land.  No  inference  or  deduction  from  a  statute,  nothing  short  of 
a  positive  enactment  by  the  legislature,  could  change  them.  The  code 
contains  no  such  enactment ;  and  we  repeat,  that  we  do  not  perceive  in 
it  any  countenance  for  an  inference  or  deduction  to  that  effect.  The 
chapter  of  the  code  relative  to  injunctions,  in  our  judgment,  does  not 
affect  the  question.  It  substitutes  an  order  for  the  writ  heretofore  used, 
and  it  defines  the  cases  in  which  it  may  be  granted  ;  the  latter  being 
the  same,  substantially,  as  were  established  in  our  Court  of  Chancer^-. 
It  does  not  profess  to  create  a  new  remedy.  On  the  contrary-,  it  recog- 
nizes the  injunction  as  an  existing  provisional  remedy  ;  provides  the 
order  in  place  of  the  writ,  and  regulates  the  mode  of  granting  it.  Its 
character,  as  a  mode  of  equitable  relief,  is  not  at  all  altered  or  impaired. 

Our  conclusion  is,  that  the  plaintiffs  had  no  right  to  an  injunction, 
while  they  demanded  a  forfeiture  of  the  lease.     As  the  case  made  by 


^. 


^^\ 

^A^ 


90  EFFECT   IN   SUBSTANTIVE   LAW. 

the  complaint  would  entitle  them  to  an  injunction,  if  their  relief  had 
been  limited  to  that  remedy,  together  with  damages,  we  will  permit 
the  injunction  to  stand,  on  their  stipulating  not  to  take  judgment  for 
a  forfeiture,  or  delivery  of  possession  of  the  premises  ;  and  they  may 
amend  their  complaint  so  as  to  ask  for  damages.  Unless  they  thus 
stipulate,  the  order  for  the  injunction  must  be  reversed. 


HOWE  V.  PECKHAM. 

Supreme  Court  of  New  York,  Special  Term,  October,  185 i. 

[6  Hozc.  Pr.  229.] 

Demurrer  to  Complaint. — The  complaint  alleged  that  the  plaintiff  was 
driving  a  one  horse  wagon  along  the  highway,  and  that  a  short  dis- 
tance behind  the  plaintiff  a  person  was  driving  a  two  horse  wagon  in 
the  same  direction  with  plaintiff;  that  a  short  distance  behind  this 
person,  was  the  defendant's  team,  drawing  a  two  horse  sled,  and  trav- 
elling in  the  same  direction  ;  that  the  defendant  carelessly  and  negli- 
gently left  his  team  to  go  along  the  said  highway  without  any  driver, 
and  went  and  got  into  the  wagon  with  the  person  driving  between  the 
plaintiff  and  the  defendant's  team,  and  rode  with  said  person  ;  and 
that  defendant's  team,  being  so  left,  started  into  a  run  and  ran  over 
the  plaintiff,  his  horse  and  wagon,  injured  the  plaintiff's  person,  broke 
his  wagon  and  harness,  and  damaged  the  horse.     The  complaint,  at  the 
conclusion  of  the  statement  of  the  cause  of  action,  averred  that  the 
injuries  were  occasioned  by  the  ''gross  and  wilful  carelessness  and  neg- 
ligence of  defendant. ' ' 

A.  N.  Sheldon,  for  defendant.     The  complaint  is  drawn  in  violation 
of  the  167th  section  of  the  Code.     It  contains  two  distinct  and  separate 
causes  of  action  wnthin  the  meaning  of  this  section,  to  wit :  injuries  to 
the  person  and  injuries  to  the  property  of  the  plaintiff.  ^     Before  the  Code, 
actions  were  distinguished  by  their  forms,  now  the  forms  of  actions  are 
abolished."     But  while  the  Code  has  abolished  these  forms  of  actions, 
it  has  created,  or  preserved  in  fact,  a  distinction  in  one  respect  as  to  the 
forms  of  actions,  and  that  is  as  to  the  joinder  of  causes  of  action  ;  and 
these  different  divisions,  made  by  the  section  in  question,  can  not  be 
joined  any  more  than  could  assumpsit  and  trespass  heretofore. 
H.  C.  Goodwin  and/.  P.   Whittemorc,  for  the  plaintiff. 
Mason,  Justice. — There  is  no  doubt  in  my  mind  in  this  case  that 
the  complaint  states  a  cause  of  action  in  case,  or  what  would  have  been 
an  action  upon  the  case  under  the  former  system  of  pleading  and  upon 
the  principles  of  the  common  law.     It  is  a  complaint  in  which  the 
plaintiff  has  made  the  negligence  of  the  defendant  the  ground  of  action, 

1  Monell's  Practice,  46  to  ^8.  2  Code,  §  60. 


HOWE    V.    PECKHAM.  91 

and  in  which  the  damages  both  to  the  plaintiflF's  person  and  his  prop- 
erty are  claimed  as  a  consequence  of  the  negligence,  or  as  resulting 
from  the  negligence  complained  of. 

This  was  a  familiar  mode  of  declaring  under  our  former  system,  for 
the  rule  is  well  settled  by  a  long  series  of  adjudications,  both  in  England 
and  in  this  country,  that  in  this  class  of  cases  if  it  appeared  that  the 
injury  was  attributable  to  negligence,  though  it  were  immediate,  the 
party  injured  has  an  election  either  to  treat  the  negligence  of  the  defend- 
ant as  the  cause  of  action  and  to  declare  in  case,  or  to  consider  the  act 
itself  as  the  injury,  and  declare  in  trespass.^ 

And  it  should  be  borne  in  mind  that  where  the  injury  resulted  from 
the  one  negligent  act  of  the  party,  as  in  the  present  case,  it  constituted 
but  one  cause  of  action.  The  running  against  the  plaintiff's  carriage 
in  the  highway  and  breaking  it,  and  upsetting  the  plaintiff  and  injuring 
him  by  the  careless  negligence  of  the  defendant  never  constituted  but 
one  cause  of  action,  in  which  the  plaintiff  recovered  his  damages  as 
well  for  his  personal  injury  as  for  the  injury  of  his  property.  This  is 
a  salutary  rule,  for  when  an  injury  has  resulted  both  to  the  person  and 
the  property  of  the  plaintiff  from  one  single  act  of  negligence  of  the 
defendant  the  law  ought  not  to  be  guilty  of  so  great  a  folly  as  to  com- 
pel the  plaintiff  to  sustain  the  burden  and  expense  of  two  suits  to 
recover  his  damages  ;  and  the  courts  which  have  been  so  fastidious  to 
avoid  circuity  of  action  ought'  not  to  require  it  unless  the  innovating 
spirit  of  the  legislature  has  required  it  by  the  passage  of  a  statute 
which  compels  the  courts  thus  to  divide  up  claims  for  damages  result- 
ing from  a  single  act.  The  defendant's  counsel  insists  that  the  167th 
section  of  the  Code  imposes  this  rule  upon  the  courts.  I  feel  con- 
strained to  say,  however,  after  a  most  careful  examination  of  this  stat- 
ute and  the  best  deliberation  which  I  have  been  able  to  bestow  upon 
the  case,  that  I  do  not  think  that  this  statute  has  the  effect  which  the 
counsel  for  defendant  attributes  to  it.  The  section  reads  as  follows : 
"The  plaintiff  may  unite  several  causes  of  action  in  the  same  com- 
plaint when  they  all  arise  out  of,  i.  Contract,  express  or  implied.  2. 
Injuries  with  or  without  force  to  the  person.  3.  Injuries  with  or 
without  force  to  the  property,"  &c.  And  then  follows  this  provi- 
sion: "But  the  causes  of  action  so  united  must  all  belong  to  one 
only  of  these  classes,"  &c.  I  do  not  discover  anything  in  this 
section  which  requires  a  plaintiff  to  sever  a  single  cause  of  action. 
The  demurrer  in  this  cause  is  not  well  taken,  in  my  opinion,  for  the 
reason  that  the  plaintiff  has  not  united  several  causes  of  action  in  the 
same  complaint.  He  has  only  stated  one  cause  of  action.  This  sec- 
tion was  never  intended,  it  seems  to  me,  to  sever  a  cause  of  an  action 
like  that  set  forth  in  the  complaint.  The  legislature  in  using  the  term 
''several  ea?/ses  of  actiotis,  "  in  this  section,  must  have  had  reference  to 

1  WiUiams  v.  Holland,  lo  Bing.  R  112,  117  ;  Blin  i.  Campbell,  14  J.  R.  433 ;  Wilson  v.  Smith, 
10  W'.  R.  32S;  I  ChiUy'sPl.  127,  128. 


92  EFFECT    IN    RELATION    TO   SUBSTANTIVE    LAW. 

the  causes  of  action  as  they  were  then  founded,  limited,  and  defined 
by  the  common  law  ;  for  there  was  no  other  resort  to  ascertain  what 
constituted  a  cause  of  action. 

The  rule  is  a  familiar  one,  that  statutes  are  to  be  construed  with  ref- 
erence to  the  principles  of  the  common  law  in  force  at  the  time  of  their 
passage,  for  it  is  not  to  be  presumed  that  the  legislature  intended  to 
make  any  innovations  upon  the  common  law  farther  than  the  case 
absolutely  required.  ^ 

This  167th  section  instead  of  severing  causes  of  an  action  as  they 
existed  at  the  time  of  the  passage  of  the  statute,  and  thereby  creating 
a  multiplicity  of  suits,  was,  I  have  no  doubt,  intended  by  the  framers 
thereof  to  lessen  suits  and  diminish  their  number  by  allowing  the 
plaintiff  to  bring  into  the  same  suit  and  recover  his  damages  for  half  a 
dozen,  or  any  greater  number  of  assaults  and  battery  committed  upon 
distinct  and  different  occasions,  and  so  for  any  other  injury  to  the  per- 
son, he  may  join  in  the  same  action  with  assault  and  battery. 

But,  again,  the  Code  does  not  abolish  in  any  manner  the  causes  of 
action  as  they  existed  before  the  passage  of  that  act,  nor  does  the  Code 
in  any  manner  define  what  shall  constitute  a  cause  of  action.  It  leaves 
all  this  matter  as  it  was  at  common  law  or  in  equity  before  the  Code 
was  passed.  It  is  true  the  69th  section  has  abolished  the  forms  of  the 
action,  but  it  leaves,  as  we  have  before  said,  the  causes  of  action  as  they 
were  ;  and  the  Code  was  never  intended  to  trench  upon  their  boundaries 
so  far  as  the  cause  of  action  is  concerned.  The  cause  of  action  in  case 
is  as  perfectly  preserved  under  the  Code,  although  the  form  of  prose- 
cuting the  particular  action  is  abolished,  as  it  existed  before  the  Code, 
or  if  it  suits  the  individual  of  the  code  language  any  better,  we  will  say 
that  the  form  of  the  action  upon  the  case  is  abolished,  while  the  sub- 
stance of  the  action  in  all  its  elements  is  most  perfectly  retained. 

If  I  am  right  in  the  opinion  above  expressed,  it  follows  that  the 
plaintiff  must  have  judgment  upon  the  demurrer,  which  I  hereby  order 
to  be  entered,  with  leave  to  the  defendant  to  answer  the  complaint  on 
payment  of  costs. 

1  4  Kent,  Com.  464,  3d  ed. 


CKOPSHY    V.    SWEENEY.  93 

CROPSEY  :■.  SWEENEY. 

Supreme  Court  of  New  York,  General  Term,  May,   1858. 

[27  Barb.  310.] 

Appeal  from  an  order  made  at  a  special  term,  overruling  a  demurrer 
to  the  complaint.  The  action  was  brought  by  the  plaintiflf  to  recover 
for  servdces  rendered  by  her  for  James  Ridgeway,  deceased,  in  his  life- 
time, while  she  and  Ridgeway  were  living  together  as  husband  and 
wife,  and  supposing  themselves  to  be  such,  in  pursuance  of  a  marriage 
valid  in  point  of  form.  The  marriage  afterwards  turned  out  to  be  void, 
however,  in  consequeuce  of  Ridgeway  having  a  previous  wife,  living  at 
the  time.  The  defendant,  who,  as  public  administrator,  admini.stered 
upon  the  estate  of  Ridgeway,  after  the  death  of  the  latter,  demurred  to 
the  complaint,  on  the  ground  that  it  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

By  the  Court,  Sutherland,  J. — Unless  the  code,  by  abolishing  the 
distinction  between  actions  at  law  and  suits  in  equity,  and  the  forms  of 
such  actions  and  suits,  and  of  pleadings  theretofore  existing,  intended 
to  initiate,  and  has  initiated,  new  principles  of  law,  by  which  a  class 
of  rights  and  of  wrongs,  not  before  the  proper  subjects  of  judicial  inves- 
tigation and  remedy,  can  now  be  judicially  investigated  and  remedied, 
the  facts  stated  in  the  plaintiflf  's  complaint  in  this  action  do  not  con- 
stitute a  cause  of  action,  and  the  demurrer  of  the  defendant  to  that 
complaint  is  well  taken.  I  am  not  aware  that  any  one  has  ever  claimed 
for  the  code,  or  charged  against  the  code,  a  mission,  or  purpose,  so 
bold,  novel,  sweeping,  and  dangerous.  It  cannot  be  supposed  that  the 
abolition,  in  words,  of  the  distinction  between  actions  at  law  and  suits 
in  equity,  by  the  code,  was  intended  to  break  up  the  well  settled  funda- 
mental principles  and  limits  of  common  law  and  equitable  jurisdiction, 
and  open  to  courts,  as  proper  subjects  of  judicial  discretion,  a  class  of 
moral  wrongs,  or  misfortunes,  not  before  the  legitimate  subjects  of  legal 
or  equitable  investigation  or  redress.  Nor  can  it  be  supposed  that  the 
abolition  of  the  forms  of  actions  was  intended  to  create  or  justify  novel 
and  unprecedented  causes  of  action. 

Although  the  form  of  the  action  of  assumpsit,  and  of  the  pleadings 
therein,  has  been  abolished,  yet  the  obligation  of  contracts,  and  the 
distinction  between  an  express  and  an  implied  assumpsit  remain  ;  and 
notwithstanding  the  code,  in  a  large  class  of  cases,  now  as  before  the 
code,  it  is  only  on  the  theory  of  an  implied  assumpsit,  "inferred  from 
the  conduct,  situation,  or  mutjial  relations  of  the  parties,"  that  justice 
can  be  enforced,  and  the  performance  of  a  legal  dutj'  compelled. 

It  is  no  longer  necessary,  and  perhaps  not  even  proper  in  such  a 
case,  for  the  plaintiff  to  allege  in  his  complaint  any  promise  on  the  part 
of  the  defendant,  but  he  rujist  state  facts  which  if  true,  according  to 


94  EFFECT   IN   RELATION   TO   SUBSTANTIVE   LAW. 

well  settled  principles  of  law,  would  have  authorized  him  to  allege, 
and  the  court  to  infer,  a  promise  on  the  part  of  the  defendant,  before 
the  code.  The  form  of  assumpsit  is  no  longer  necessary,  or  perhaps 
even  proper,  in  such  a  case  ;  but  facts  sufficient  to  raise  it,  and  to  put  it 
on  paper,  were  it  lawful  to  do  so,  are  still  necessary. 

It  follows,  from  what  has  been  said,  that  the  principal  question 
raised  by  the  demurrer  in  this  case  is,  there  being  no  express  promise 
pretended  or  alleged  in  the  complaint,  whether  the  law  implies  a 
promise  from  the  facts  therein  stated. 

The  action  is  for  services  rendered  by  the  plaintiff  for  James  Ridge- 
way  in  his  lifetime,  while  the  plaintiff  was  standing  in  the  supposed 
relation  of  wife. 

It  is  alleged  in  the  complaint,  that  the  marriage  ceremony  was  sol- 
emnized in  due  form  of  law,  between  the  plaintiff  and  James  Ridgeway, 
in  182 1,  she  believing  that  they  were  lawfully  married,  and  living  and 
cohabiting  with  him  as  his  wife.  That  on  or  about  the  15th  Septem- 
ber, 1 82 1,  proceedings  were  instituted  in  the  court  of  chancery^  of  this 
state,  against  James  Ridgeway,  for  divorce,  by  Catherine  Ridgeway,  to 
whom,  under  the  name  of  Catharine  Dob,  he  had  been  married,  in  the 
year  1812,  and  from  whom  he  had  separated  in  1815.  That  on  or  about 
the  13th  day  of  June,  1822,  a  decree  was  made,  dissolving  the  marriage 
between  the  said  Catharine  and  James.  That  about  the  summer  of 
1825,  the  marriage  ceremony  was  again  solmenized,  in  due  form  of  law, 
between  the  said  plaintiff  and  the  said  James  Ridgeway.  That  before 
and  at  the  time  of  the  ceremony  of  marriage  in  1825,  the  plaintiff  was 
informed,  and  believed,  that  the  said  James  Ridgeway  was  competent 
to  contract  marriage  with  the  plaintiff,  and  that  no  impedient  existed, 
and  that  the  plaintiff  believed  that  the  marriage  was  valid  until  after 
the  death  of  James  Ridgeway.  That  from  the  time  of  the  first  marriage 
ceremony  until  James  Ridgeway 's  death,  in  1847,  the  plaintiff  and  the 
said  James  lived  and  cohabited  together  as  husband  and  wife,  and  were 
known  and  reputed  as  such.  That  at  the  time  of  the  first  marriage 
ceremony,  James  Ridgeway  was  a  carpenter,  and  possessed  of  property 
not  exceeding  $1,000  in  value.  That  the  plaintiff,  in  addition  to  her 
ordinary  household  duties,  and  the  usual  care  and  management  of  the 
domestic  affairs  of  James  Ridgeway,  labored  to  promote  the  success  of 
his  undertakings,  and  to  procure  the  means  of  defraying  the  household 
expenses,  and  in  the  conduct  and  management  of  the  domestic  affairs 
practiced  the  utmost  economy.  That  the  said  James  was  successful  in 
his  business,  and  accumulated  a  fortune,  which  at  the  time  of  his 
death  amounted  to  $150,000.  That  during  the  entire  period  the 
plaintiff  so  lived  and  cohabited  with  James  Ridgeway,  she  had  the 
entire  management  of  his  domestic  affairs,  and  labored,  by  industry, 
economy,  care,  and  attention  to  her  duties,  to  promote  his  interests  and 
success ;  and  that  it  was  owing  to  her  efforts  that  he  was  enabled  to 
accumulate  so  much  property.     That  during  the  same  period  she  bore 


CROPSEY   V.    SWEENEY.  95 

unto  him  twelve  children,  eight  of  whom  are  living.  That  prior  to  the 
marriage  of  James  Ridgeway  with  Catharine  Dob,  he  had  once  been 
married,  and  had  issue  by  both  marriages.  That  one  child,  Kli/.a  Ann, 
wife  of  Jeremiah  Rowland,  and  one  grandchild,  George  W.  Ridgeway, 
surviving  issue  of  his  deceased  son  Joseph,  the  issue  of  his  first  mar- 
riage, and  one  grandchild,  the  sole  surviving  issue  of  a  daughter  by 
his  second  marriage,  claim  to  be  the  only  lawful  heirs  of  James  Ridge- 
way, and  entitled  to  his  estate. 

The  plaintiff  claims  that  the  services  rendered  by  her  to  James  Ridge- 
way, in  and  about  the  management  of  his  household  affairs,  and  other- 
wise, as  in  the  complaint  set  forth,  were  rendered  at  his  request,  and 
were  reasonably  worth  forty  thousand  dollars  ;  and  she  demands  judg- 
ment for  that  sum,  with  interest  from  21st  Nov.  1S47.  It  is  not  alleged 
in  the  complaint  that  James  Ridgeway,  in  his  lifetime,  ever  knew  or 
supposed,  after  the  last  marriage  ceremony,  that  the  plaintiff  was  not 
his  lawful  wife ;  nor  is  it  alleged  that  when  his  first  supposed  marriage 
with  the  plaintiff  took  place,  he  knew  that  his  wife  Catherine  was 
living,  and  he  unable  to  contract  a  legal  marriage  with  the  plaintiff. 

No  doubt,  from  the  time  of  the  first  marriage  ceremonj-  to  the  insti- 
tution of  the  suit  for  divorce,  and  from  the  time  of  the  second  marriage 
ceremony  until  his  death,  James  Ridgeway  and  the  plaintiff  both  sup- 
posed they  were  lawfully  married,  and  that  he  lived  and  died  supposing 
the  plaintiff  was  his  lawful  wife.  Now,  after  his  death,  upon  the 
assumption  that  his  supposed  marriage  was  not  legal,  will  the  law  per- 
mit us,  or  authorize  us,  to  turn  this  supposed  relation  of  husband  and 
wife  into  the  relation  of  master  and  ser\'ant,  and  thus  infer  or  imply  a 
promise  on  the  part  of  James  Ridgeway,  in  his  life,  to  pay,  and  an 
expectation  on  the  part  of  the  plaintiff  to  receive  pay,  for  the  services 
rendered  by  the  plaintiff  while  so  standing  in  the  supposed  relation  of 
husband  and  wife?  The  very  ground  upon  which  the  plaintiff's 
case  appeals  so  strongly  to  the  sympathies  of  the  court  forbids  any 
such  fiction,  inference,  or  implication.  Her  own  (no  doubt  truthful) 
story  of  her  long,  devoted,  faithful  love,  and  services,  as  a  wife  and 
mother,  will  not  permit  us  to  say  that  she  is  legally  entitled  to  receive 
pay  for  those  services  as  a  serz'a?it. 

True,  the  law  will  not  presume  that  work  or  labor  performed  as  a 
serz'ant  or  laborer  was  voluntarj-,  and  performed  without  any  view  to 
compensation  ;  but  the  law  can  not  presume  that  the  domestic  and 
household  work  and  services  of  a  wife  for  a  husband  are  performed  with 
the  view  to  pay  as  a  servant  or  laborer. 

The  law  would  do  injustice  to  the  plaintiff  herself,  by  implying  a 
promise  to  pay  for  these  services  ;  and  respect  for  the  plaintiff  herself, 
as  well  as  for  the  law,  compels  us  to  infer  and  hold  that  these  services 
were  performed  not  as  a  servant,  with  a  view  to  pay,  but  from  higher 
and  holier  motives  ;  and  that  therefore  her  complaint  does  not  consti- 
tute any  cause  of  action.  Order  reversed. 


EFFECT   IN   RELATION   TO   SUBSTANTIVE   LAW.  96 


LUBERT  V.  CHAUVITEAU. 

Supreme  Court  of  California,  October,  1853. 

[3   Cal.  458.] 

The  suit  was  brought  by  a  resident  of  Bordeaux,  in  France,  who 
complained  that  about  the  7th  September,  1850,  he  shipped  in  the  ship 
Salome,  bound  from  Bordeaux  to  San  Francisco,  a  quantity  of  merchan- 
dise, (describing  it,)  and  assigned  the  same  to  Hugens  Brothers,  com- 
mission merchants  of  San  Francisco,  or  their  order ;  that  said  mer- 
chandise duly  reached  its  port  of  destination,  and  was  placed,  by  the 
handing  over  of  the  bill  of  lading,  in  the  hands  of  the  defendants, 
commission  merchants  of  said  city,  by  the  said  Hugens  Brothers,  the 
consignees  of  the  plaintiff,  to  sell  and  dispose  the  same  to  the  best 
advantage,  for  the  sole  use  and  benefit  of  the  plaintiff,  and  that  defend- 
ants agreed  to  render  a  just  and  true  account  of  the  sales,  and  to  pay 
the  proceeds  thereof  to  the  plaintiff  or  his  agents. 

And  plaintiff  shows  that  defendants  received  this  merchandise,  accord- 
ing to  the  understanding  above  stated  ;  that  they  sold  and  disposed  of 
the  whole,  or  the  greater  part  thereof;  and  that  they  refuse  to  pay  over 
the  net  proceeds,  or  any*part  thereof,  though  often  requested  by  the 
agents  of  the  said  plaintiflF.  Judgment  is  asked  for  $2,500,  the  value 
of  the  said  merchandise,  and  for  costs. 

The  answer  of  the  defendants  denies  all  the  allegations  in  the  bill 

The  facts  in  this  case  were  as  follows  :  In  September,  1850,  the  plain- 
tiff shipped  a  quantity  of  merchandise,  sardines,  white  gum,  prepared 
peas,  and  cloves,  which  he  consigned  to  the  house  of  Hugens  Brothers, 
commission  merchants,  San  Francisco,  with  instructions  to  sell  the 
goods  for  cash,  and  to  remit  the  proceeds,  in  bills  or  gold,  to  the  plain- 
tiff. In  August,  1850,  Hugens  Brothers  incurred  liabilities  to  the 
amount  of  $5,000,  to  the  defendants,  commission  merchants  and  bank- 
ers, doing  business  in  San  Francisco,  which  they  failed  to  meet  at 
maturity.  In  December,  1850,  the  defendants  required  of  Hugens 
Brothers  additional  security  for  the  debt ;  and  they  finally  pledged,  con- 
ditionally, two  bills  of  lading,  on  the  way  from  France,  one  of 
which  was  the  duplicate  of  the  plaintiff" 's  goods.  The  understanding 
was  that  the  defendants  should  hold  these  securities  until  Hugens 
Brothers  could  place  securities  of  their  own  in  lieu  of  them.  At  the 
time  the  pledge  was  made  to  defendants,  they  were  told  by  Hugens 
Brothers  that  the  goods  mentioned  in  the  bill  of  lading  of  one  vessel, 
the  Salome,  belonged  to  the  jjlaintiff,  and  that  they  had  no  interest  in 


LUBERT   :'.    CHAUVITEAU.  97 

or  lien  upon  it ;  that  plaintiff  was  in  no  way  indebted  to  them.  At  the 
same  time  Hugens  Brothers  showed  to  the  defendants  the  letters  of 
instruction  from  the  plaintiff.  Some  time  after  the  pledge  above  men- 
tioned, Hugens  Brothers  placed  in  the  hands  of  defendants  a  large  con- 
signment of  goods,  arrived  by  the  ship  /u/ius,  which  defendants  agreed 
to  receive  in  place  of  the  bills  of  lading  pledged  above^ 

This  consignment  was  received  by  defendants  as  a  full  paj-nient  of 
all  the  indebtedness  of  Hugens  Brothers.  A  short  time  after  this,  the 
ship  Salome  arrived,  and  defendants  were  requested  to  hand  over  the 
bill  of  lading  or  give  a  permit  to  land  the  plaintiff's  goods.  They 
positively  refused  to  do  either,  and  insisted  on  holding  the  goods  until 
the  merchandise  oiWx^  Julius  was  sold,  and  their  account  with  Hugens 
Brothers  was  closed. 

At  the  time  of  the  demand  and  refusal,  plaintiff's  goods  were  worth 
$4,500  or  $5,000;  the  sardines  alone  were  sold  for  $3,500  by  Hugens 
Brothers,  but  could  not  be  delivered  to  the  purchaser,  owing  to  the 
refusal  of  defendants  to  deliver  them.  The  defendants  had  exclusive 
control  of  the  goods,  and  they  afterwards  sold  the  greater  part  thereof. 
By  the  account  of  sales  made,  and  from  the  evidence  of  defendant's 
clerk,  it  appeared  that  the  sardines  and  peas  sold  for  $3,112.92. 

Defendants'  counsel  moved  for  a  nonsuit,  on  the  ground  that  the 
proof  did  not  support  the  complaint.  The  motion  was  overruled,  and 
exception  taken. 

The  defendants  then  proved  that  the  white  gum,  cloves,  and  one  case 
of  preserved  peas,  were  destro3-ed  by  fire  in  INIay,  1851,  and  that  they 
had  paid  duties  and  custom-house  charges  on  the  goods,  to  the  amount 
of  $9 10. 50.  Plaintiff 's  counsel  contended  that  these  charges  could  not 
be  proved  under  the  pleadings.  The  court  admitted  the  proof,  and  the 
plaintiff  excepted.  Defendants  proved  that  the  rate  of  commission  on 
the  sale  of  goods,  in  1850  and  1851,  was  ten  per  cent;  which  plaintiff 
objected  to,  but  the  Court  admitted  the  proof  and  plaintiff  excepted. 
Defendants  offered  to  give  in  evidence  an  account  of  the  sales  of  the 
goods  by  the  Salome,  taken  from  their  books,  and  offered  to  produce 
the  books  of  the  firm  ;  this  the  Court  rejected,  and  defendants'  coun- 
sel excepted. 

The  Court  charged  :  i.  If  the  jury  believed  that  the  goods  of  the 
plaintiff  were  pledged  by  Hugens  Brothers,  to  secure  a  debt  of  their 
own,  with  knowledge  on  the  part  of  the  defendants,  at  the  time  the 
pledge  was  made,  that  the  goods  belonged  to  the  plaintiff,  the  plaintiff 
was  entitled  to  a  verdict. 

2.  If  the\'  found  afl&rmativel}-  on  the  first  proposition,  it  was  for 
them,  exclusively,  to  say  what  amount  the  plaintiff  was  entitled  to 
recover  ;  and  as  to  the  said  amount  the}'  were  limited  onl}-  by  the  $2, 500 
claim  in  the  complaint  ;  but  in  making  up  the  amount  the}-  were  to 
leave  out  the  goods  destroyed  by  fire,  as  the  plaintiff  waived  any  claim 
for  them  ;  that  the}'  should  ascertain  what  the  goods  were  worth  at  the 


98  EFFECT    IN    RELATION   TO   SUBSTANTIVE    LAW. 

time  of  demand  and  refusal,  or  what  they  sold  for,  after  deducting  the 
expenses  and  charges  set  up  by  the  defendants,  if  they  should  find  said 
charges  and  expenses  true,  and  render  a  verdict  for  said  amount,  but 
limited  by  the  amount  claimed. 

Defendants'  counsel  excepted  to  the  charges,  and  asked  the  court  to 
charge  :  ist.  That  if  the  goods  were  delivered  by  Hugens  Brothers  to 
the  defendants  to  be  sold  by  them,  and  the  proceeds  of  sale  placed  to 
the  credit  of  Hugens  Brothers,  the  plaintiff  is  not  entitled  to  recover. 
This  the  court  refused. 

2nd.  The  counsel  of  defendants  argued  that  the  evidence  went  to 
support  an  action  ex  delicto,  and  that  the  complaint  was  an  action  ex 
contractu,  and  asked  the  court  to  instruct  the  jury  that,  if  they  believed 
the  evidence  did  not  sustain  the  contract  as  laid  in  the  complaint,  the 
defendants  were  entitled  to  a  verdict.  The  court  refused,  and  defend- 
ants excepted. 

The  jury  found  for  the  plaintiff  $2,500,  and  the  court  ordered  judg- 
ment accordingly,  with  costs,  etc.     Defendants  appealed. 

No  brief  for  appellants. 

W.  H.  Sharp,  for  respondent.* 

The  opinion  of  the  court  was  delivered  by  Wells,  Justice,  Heyden- 
FELDT,  Justice,  concurring. 

The  first  assignment  of  error  is,  that  the  evidence  does  not  support 
the  contract  as  laid  in  the  complaint,  and  therefore  that  the  court  erred 
in  refusing  to  order  a  nonsuit. 

The  plaintiff  in  the  court  blow  waived  the  tort,  (if  any  had  been  com- 
mitted) and  brought  his  action  against  the  defendants  as  factors,  to 
account  for  goods  sold  by  them,  and  to  restore  the  amount  of  the  net 
proceeds  arising  from  the  sale.  This  he  had  a  right  to  do,  according 
to  well-established  principles  of  the  common  law,  and  it  was  competent 
for  him  to  introduce  evidence  showing  the  manner  in  which  the  defend- 
ants became  possessed  of  the  goods ;  and  although  the  proof  should 
establish  the  fact  that  the  defendants  became  possessed  of  them  wrong- 
fully, it  would  still  be  sufficient  to  maintain  an  action  against  the 
defendants  as  consignees  or  factors  for  the  net  proceeds. 

One  of  the  objects  sought  by  the  reformation  in  the  forms  of  plead- 
ing was  to  provide  for  cases  like  the  present.  The  distinctions  in  the 
form  of  actions  ex  delicto  and  ex  contractu  are  abolished,  and  one  form 
of  action  only  substituted,  and  the  plaintiff  here  has  brought  his  action 
in  the  form  prescribed  by  the  Code ;  but  the  principles  of  law  which 
govern  the  case  remaining  unchanged,  he  introduced  testimonj'  to  main- 
tain his  action  as  he  would  have  done  under  the  common  law  system  of 
practice  in  an  action  of  assumpsit,  based  upon  a  similar  state  of  facts  ; 
and  the  court  committed  no  error  in  refusing  a  nonsuit,  either  on  the 
ground  of  variance  or  insufiiciency  of  proof  to  sustain  the  complaint. 

I  Respondent's  argument  is  omitted. 


RICIIAKDSON    AND    WIFE    'J.    MEANS.  99 

But  the  plaintiff  having-  elected  to  proceed  against  the  defendants  as 
factors,  instead  oi  tort  ft-asors,  he  thereby  ratified  the  act  of  his  agents, 
Hugens  Brothers,  in  transferring  the  merchandise  and  the  bills  of 
lading  into  the  hands  of  the  defendants,  and  the  defendants,  who  were 
commission  merchants,  as  shown  by  the  complaint,  must  be  considered 
as  acting  as  the  authorized  consignees  and  commission  merchants  of 
the  plaintiff,  and  entitled  to  the  rights  and  benefits  arising  from  this 
relation.  It  follows  that  the  plaintiff  could  only  recover  from  the 
defendants  the  net  ])roceeds  arising  from  the  sale  and  disposition  of  the 
merchandise,  after  deducting  the  necessary  charges  and  disbursements  ; 
and  the  court  erred  in  admitting  proof  of  the  value  of  the  goods  at  the 
time  of  the  demand  and  refusal  to  deliver. 

The  defendants  are  not  charged  with  non-performance  or  negligence, 
nor  with  fraud  in  the  sale,  and  no  cause  is  shown  why  they  were  not 
entitled  to  commissions.  The  strict  measure  of  damages,  therefore,  was 
the  net  proceeds  after  deducting  the  •  necessary  charges,  disbursements, 
and  commissions  ;  and  the  c'oi;it>  gfred';in,'refxi.!\ing  to  admit  in  evidence 
the  books  of  de^endan,fs''fi'rm  to  prove  thfe'  acr.durit.,  of  the  sale  of  the 
goods.  It  Vi'a8  r/ot  necessary,  as  is  insisted  upon  1 ''fbf ■, the  defendants, 
who  were  rec'ognized  by  the  plaintiff  as  factors,  ancf  jJrosVcuted  as  such, 
to  set  forth  in  their  artt^wer these  thyigv'Sv'difebu.rs'ements,  and  commis- 
sions, either  as  new  maMiev,  or  ;by'Way;  tNf'Se^trdff,  to  a  claim  for  the  net 
proceeds  of  the  sale.  And  the  court  erred  in  charging  the  jury  that  it 
was  for  them  exclusivel}-  to  say  what  amount  the  plaintiff  was  entitled 
to  recover,  or  that  the  defendants  were  liable  for  the  value  of  the  goods 
at  the  time  of  the  demand  and  refusal.  Therefore,  in  order  that  these 
errors  may  be  corrected,  the  judgment  of  the  court  below  is  set  aside, 
and  a  new  trial  ordered.' 


RICHARDSON  AND  WIFE  v.   MEANS. 

Supreme  Court  of  Missouri,  March  Term,  1856. 

^22  Mo.  495.] 

This  was  an  action  commenced  June  17,  1853,  by  Maria  L.  Richard- 
son (the  husband  having  afterwards  been  made  a  party  by  an  amended 
petition)  for  the  recovery  of  a  female  slave  and  her  two  children, 
alleged  in  the  petition  to  have  been  wrongfull}-  taken  by  the  defendant. 
May  I,  1849,  ^"d  unlawfully  detained  by  him. 

Defendant,  in  his  answer,  denied  the  title  of  plaintiff,  and  claimed 
title  in  himself,  and  relied  upon  a  bill  of  sale  to  himself,  dated  May  i, 

1  This  case  was  reheard  by  order  of  the  court,  and  the  above  opinion  was  re-affirmed, 
December  5th,  1853. 


100  EFFECT   IN   RELATION   TO   SUBSTANTIVE   LAW. 

1848,  of  the  negress  and  one  child,  executed  by  Thomas  R.  Richardson, 
husband  of  plaintiff  Maria,  and  co-plaintiff  in  this  action. 

To  sustain  the  wife's  right,  she  relied  on  a  deed  of  gift  from  her 
father,  William  C.  Bruce,  dated  April  i,  1845,  by  which  in  considera- 
tion of  love  and  affection  toward  the  plaintiff,  his  daughter,  he  con- 
veyed the  female  slave  in  controversy  to  one  Littleton  Jozner,  "upon 
trust  that  the  said  Jozner,  his  executors,  «&c.,  shall  permit  my  said 
daughter  to  hold  possession  of  and  take  the  use,  hire,  and  profits  of  the 
said  Maria  and  her  increase  to  her  sole  and  separate  use  during  her  life, 
independent  of  her  said  husband  ;  and  at  the  death  of  my  said  daugh- 
ter, the  said  Maria  and  her  increase  to  be  equally  divided  between  her 
children, "  &c. 

The  bill  of  sale  mentioned  above,  dated  Maj-  ist,  1848,  was  introduced 
and  proven  by  defendant. 

The  jury  found  for  the  defendant,  and  judgment  was  given  accord- 
ingly.    Plaintiff  appealed. 

Gates,  for  appellant.     ,  ' 

Glover  &  Richardson,  'for  respondent. 

Leonard,  J.--rV/e  can  not  reverse  this  judgment,  no  matter  how 
much  we  may  regret  that  parties,  by  a  slip  in  the  form"  of  proceeding, 
shovild  subject  themselves  to  coStS  and  delaj'  ia  tie  judicial  enforcement 
of  their  rights.  The"  instructions  give^n  aie  correct  in  point  of  law, 
and  this  seems  to  be  admitted  ;  but  the  objection  is,  that  the  one  given 
by  the  court  upon  its  own  suggestion,  was  not  warranted  by  any  evi- 
dence in  the  cause,  and  that,  although  correct  in  the  abstract,  it  had 
the  effect  of  m.isleading  the  jury.  If  this  could  be  made  apparent  to 
us,  it  might  furnish  sufficient  ground  for  reversing  the  judgment  in  a 
case  where  the  reversal  would  avail  the  party.  Here,  however,  the 
plaintiffs  have  stated  themselves  out  of  court,  and  therefore,  if  the  jury 
were  misled,  it  resulted  in  no  injury  to  them  ;  for  the  reason  that, 
according  to  their  own  showing,  they  had  no  case  entitling  them  to 
recovery.  The  plaintiffs'  title  is  derived  from  the  instrument  of  gift 
executed  by  the  father,  which  vests  the  legal  ownership  in  the  trustee 
for  the  use  of  the  wife  during  her  life,  and  upon  her  death  for  the  use 
of  her  children,  and  the  action  is  to  redress  a  wrong  done  to  the  legal 
ownership,  being  substantially  an  action  for  the  conversion  of  the  plain- 
tiffs' slaves.  Under  the  old  form  of  proceeding,  this  action  must  have 
been  brought  by  the  trustee  at  law  ;  but  if,  from  any  cause,  the  legal 
ownership  could  not  have  been  made  effectual  for  the  protection  of  the 
wife's  equitable  right,  the  courts  would,  at  her  suit,  upon  a  proper 
statement  of  facts,  all  the  necessary  parties  being  before  them,  have 
administered  the  appropriate  equitable  relief.  But  it  is  supposed  that 
all  this  is  changed  by  the  new  code,  which  is  true  to  some  extent.  It 
must  be  observed,  however,  that  the  code  has  not  changed  the  rights 
of  parties,  but  only  provided  new  remedies  for  their  enforcement ;  it 
has  not  abolished  the  distinction  between  equitable  and  le-gal  rights, 


WALTER    "'.    BENNETT.  101 

but  the  distinction  Ijetween  legal  and  equitable  remedies,  .so  far,  at 
least,  as  to  provide  that  one  form  of  suit  shall  be  used  for  the  enforce- 
ment of  both  classes  of  rights.  The  case  made  upon  the  record  was 
for  legal  relief;  but  the  case  made  by  the  plaintift",  in  proof,  was  of  a 
different  character. 

It  was  the  duty  of  the  trustee  to  protect  the  legal  ownership  from 
violation,  and  to  preser^'e  the  property  for  the  use  of  the  parties  bene- 
ficially interested  as  they  should  respectively  become  entitled  ;  and  if, 
as  before  remarked,  there  were  any  obstacles  in  the  way  of  the  legal 
remedy,  or  the  trustee  refused  to  do  his  dut\',  then,  upon  a  proper  case 
stated,  and  proper  parties  being  made,  the  courts  would,  in  a  civil  suit 
under  the  code,  afford  relief  according  to  the  principles  of  equity  ;  and 
the  present  judgment  can  not  be  pleaded  in  bar  of  any  equitable  relief 
that  shall  be  thus  sought  by  the  wife. 

'I'hc  jiidi^mcnt  miist  be  affirmed. 


WALTER  :■.   BENNETT. 
Court  of  Appeals  of  New  York,   December,   1857. 

[16  N.  y.  251.] 

Appeal  from  the  Superior  Court  of  Buffalo. 

The  action  was  brought  to  recover  the  possession  of  a  draft  alleged 
to  belong  to  the  plaintiff  and  to  be  wrongfull}*  detained  by  the  defend- 
ant, and  also  to  recover  the  possession  of  $7,250  of  money  alleged  to  be 
the  property  of  the  plaintiff,  wrongfully  detained  hy  the  defendant 
These  claims  are  set  out  separateh'  in  the  two  counts  of  the  complaint. 
The  answer  is  a  simple  denial  of  the  allegations  of  the  complaint. 

At  the  trial,  before  Mr.  Justice  Clinton  and  a  jurj',  it  was  proved  that 
the  defendant  was  employed  by  the  plaintiff  to  sell  and  deliver  for  him 
five  hundred  barrels  of  pork.  As  such  agent,  and  in  the  course  of  his 
employment,  the  defendant  sold  and  delivered  the  pork  to  Watson  & 
Williams,  of  Montreal,  who,  in  payment  therefor,  and  in  accordance 
with  the  terms  of  the  sale,  sent  to  the  defendant  the  draft  in  question, 
payable  to  his  order.  The  draft  was  drawn  by  the  Bank  of  Montreal  on 
the  Bank  of  Commerce,  in  the  citj'  of  New-York,  for  ^1,812.10,  Canada 
currency,  at  six  da^-s  after  sight  and  without  grace,  and  was  dated  on 
the  twenty-third  da}-  of  September,  1854.  On  the  twent3--sixth  da}-  of 
September  the  defendant  indorsed  the  draft,  took  it  to  the  International 
Bank  of  Buffalo,  had  it  discounted,  received  the  money  upon  it,  or  had 
it  passed  to  his  credit  upon  the  books  of  the  bank.  The  draft  was  paid 
at  maturity  to  the  International  Bank  by  the  Bank  of  Commerce,  in 
whose  possession  it  continued  until  the  time  of  the  trial.  The  plaintiff 
became  aware,  on  the  twenty-seventh  of  September,  that  Watson  & 


102  EFFECT   IN    RELATION   TO   SIBSTANTIVE   LAW. 

Williams  had  remitted  the  draft  to  the  defendant  in  payment  for  the 
pork,  and  on  that  day  he  demanded  it,  or  its  avails,  of  the  defendant, 
who  then  admitted  that  he  had  received  the  draft  and  refused  to  deliver 
it.  The  judge  non-suited  the  plaintiff  and  ordered  judgment  for  the 
defendant,  which  was  subsequently  affirmed  at  general  term,  and  the 
plaintiff  appealed  to  this  court. 

Amasa  J.  Parker,  for  the  appellant. 

John  Ganson,  for  the  respondent. 

Brown,  J. — The  question  principally  discussed  by  the  counsel  for 
the  appellant  was,  whether  an  action  will  lie  to  recover  the  possession 
of  personal  property,  when  it  appears  that  the  defendant  had  parted 
with  the  possession  of  the  property  before  the  commencement  of  the 
action.  The  decision  of  that  question  is  not  necessary  to  the  determina- 
tion of  the  rights  of  the  parties  to  this  action,  because  it  will  be  seen 
that  the  defendant's  possession  of  the  draft  during  all  the  time  it 
remained  with  him  was  rightful,  and  in  parting  with  and  obtaining  the 
money  upon  it  he  was  pursuing  the  line  of  his  duty.  At  no  time  was 
his  possession  of  the  draft  unlawful  or  in  hostility  to  the  plaintiff,  and 
in  converting  it  into  money  he  was  in  the  plain  and  obvious  execution 
of  his  trust  as  the  agent  and  emploj-ee  of  the  plaintiff.  The  relation 
between  the  parties  rested  in  contract ;  for  agency,  under  all  the  author- 
ities, is  a  contract  express  or  implied.  Whatever  responsibility  attaches 
to  the  defendant,  from  his  relation  of  agent,  is  upon  the  contract,  and 
the  plaintiff  can  not,  by  changing  the  form  of  his  action,  change  the 
nature  of  the  defendant's  obligation,  and  convert  that  into  a  tort  which 
the  law  deems  to  be  a  simple  breach  of  agreement.  The  form  of  the 
plaintiff 's  action  is  ex  delicto  ;  and  before  he  can  recover  he  must  show 
that  the  defendant  committed  a  wrong,  or,  in  other  words,  wrongfully 
withheld  this  draft  from  the  true  owner.  Had  the  plaintiff  terminated 
the  agency  and  demanded  the  draft  while  it  was  in  the  defendant's 
hands,  and  before  he  had  negotiated  it  with  the  bank,  his  claim  would 
have  stood  on  very  different  grounds.  But  the  right  to  sell  implied  the 
right  to  receive  the  price  of  the  goods,  and,  in  receiving  the  draft  in 
payment  aud  realizing  the  money  upon  it,  the  defendant  did  what 
was  right  and  was  in  the  exact  performance  of  his  duty.  The  plaintiflf 
must  therefore  take  his  remedy  for  the  money  in  form  ex  contractu,  or 
not  take  it  at  all. 

The  judgment  of  the  Superior  Court  should  be  affirmed.^ 

1  Johnson,  J.,  delivered  a  concurring  opinion. 


JONES   AND   WIFE    V.    STEAMSHIP   CORTES.  103 

JONES  AND  WIFE  v.  STEAMSHIP  CORTES. 
Supreme  Court  op  California,  January,  i86i. 
[17  Cal.  487.] 

Appeal  from  the  Seventh  District. 

This  is  an  action  brought  by  Alexander  Jones  and  Mary,  his  wife, 
against  the  steamship  Cortes,  to  recover  damages  for  the  w^rong  com- 
mitted by  the  agents  and  owners  of  the  defendants,  who  for  a  valuable 
consideration  paid  them  by  Mrs.  Jones,  (before  her  marriage  to  Alexan- 
der Jones,)  contracted  to  transport  her  from  San  Francisco  to  San  Juan 
del  Sur,  and  received  her  on  board  as  a  passenger,  but  instead  of  land- 
ing her  at  the  port  of  San  Juan,  landed  her  at  Panama. 

The  complaint,  verified,  avers  that  in  March,  1856,  the  Accessory 
Transit  Company  were  the  owners  of  the  steamship  Cortes  and  other 
steamships,  engaged  as  common  carriers  in  the  transportation  of  pas- 
sengers and  property  between  San  Francisco  and  San  Juan,  in  Nicara- 
gua ;  that  the  authorized  agents  of  the  Cortes,  at  San  Francisco,  on 
March  25,  1856,  contracted  with  Mrs.  Jones,  (then  Mrs.  Musgrove,)  for 
the  sum  of  fifty  dollars  paid  by  her,  to  transport  her  to  San  Juan  on 
said  steamship,  to  sail  on  said  day ;  that  the  ship  sailed  on  the 
appointed  day,  she  being  a  passenger  on  board ;  that  in  due  time  the 
Cortes  arrived  in  the  harbor  of  San  Juan,  but  did  not  and  would  not 
land  the  plaintiff  Mrs.  Jones  there,  but  on  the  contrarj-,  against  her 
will,  carried  her  to  the  port  of  Panama  and  landed  her  there  amongst 
strangers,  without  the  means  of  support  or  of  proceeding  on  her  jour- 
ney, in  an  unhealthy  climate  and  amongst  a  hostile  population,  where 
she  was  exposed  to  great  dangers  ;  that  she  was  detained  there  ten 
days  before  any  opportunity  could  be  found  for  her  to  leave ;  that  her 
object  in  going  to  San  Juan  was  to  attend  to  important  business  there, 
which  required  her  personal  presence,  and  that  to  arrive  at  San  Juan, 
she  was  obliged  to  proceed  to  New  York,  and  from  there  return  to 
Nicaragua  ;  and  that  the  acts  complained  of  were  committed  by  the 
ofiicers  of  the  steamship,  under  orders  from  the  owners  ;  and  judgment 
is  prayed  for  ten  thousand  dollars  damages,  for  losses  and  expenses 
sustained  in  consequence  of  her  failure  to  arrive  at  Nicaragua  in  due 
season,  (which  are  specifically  averred  and  shown,)  and  of  her  forced 
journey  to  New  York  and  thence  to  Nicaragua,  and  for  her  detention 
and  suffering  by  reason  of  the  fraudulent,  wrongful,  and  malicious  acts 
of  the  defendant. 

The  complaint  further  states,  that  at  the  time  the  defendant's  agents 
at  San  Francisco  entered  into  the  contract  with  her,  they  knew  that 
the  contract  between  the  owners  of  the  steamship  line  and  the  Govern- 
ment of  Nicaragua,  under  which  the  line  had  been  running,  had  been 
annulled  by  the  Government  of  Nicaragua  ;  and  the  complaint  narrates 


104  EFFECT   IN    RELATION   TO   SUBSTANTIVE    LAW. 

certain  facts  explanatory  of  the  action  of  the  officers  of  the  steamship 
in  landing  her  passengers  at  a  different  port  than  the  one  to  which  they 
were  destined,  and  of  the  reasons  of  such  action. 

Defendant  demurred  and  answered  at  the  same  time,  but  proceeded 
to  trial  on  the  merits. 

The  answer  alleges  in  substance,  that  while  the  Cortes  was  in  the 
harbor  of  San  Juan,  the  plaintiff  Mar>'  H.  made  no  application  to  be 
landed  there,  and  that  it  was  with  her  consent  that  the  Cortes  proceeded 
to  Panama  ;  and  denies  that  the  deviation  was  wanton  or  malicious.  As 
to  all  the  other  material  allegations  of  the  complaint,  the  agent  who 
makes  answer  for  the  defendant  states  that  he  has  no  knowledge,  or 
information  sufficient  to  form  a  belief,  and  therefore  denies  them.' 

D.  Lake,  for  appellant. 

A.  P.  Crittenden,  for  respondent. 

Cope,  J.,  delivered  the  opinion  of  the  Court — Field,  C.  J.,  con- 
curring. 

In  1856  the  defendant  was  engaged  in  carrying  passengers  from  the 
port  of  vSan  Francisco,  in  this  state,  to  San  Juan  del  Sur,  in  Nicaragua, 
and  the  action  is  brought  for  the  breach  of  a  contract  to  convc}-  the 
plaintiff,  Mary  A.  Jones,  who  was  then  unmarried,  from  the  former  to 
the  latter  port,  and  for  wrongs  and  injuries  sustained  by  her  in  conse- 
quence of  the  violation  of  the  agreement.  The  grievances  complained 
of  were  occasioned  by  the  voluntary  action  of  the  owners  and  agents  of 
the  defendant,  and  on  trial  of  the  case  the  plaintiffs  were  permitted  to 
present  the  whole  matter  for  the  consideration  of  the  jury.  They  were 
allowed  to  show  among  other  things,  that  the  contract  was  fraudulent 
in  its  inception,  and  that  great  mental  and  bodily  suffering  had  been 
produced  by  the  peculiar  circumstances  attending  its  infraction.  The 
evidence  established  a  most  aggravated  case  of  hardship  and  oppression, 
and  a  verdict  was  rendered  for  ^3,800  damages. 

It  is  objected  that  the  rule  of  damages  adopted  by  the  court  below 
was  erroneous,  and  the  validity  of  this  objection  is  the  principal  ques- 
tion submitted  for  our  determination. 

In  actions  founded  upon  a  breach  of  contract,  the  common  law 
adheres  with  great  tenacity  to  the  rule  which  excludes  all  inquiry  into 
the  motive  or  animus  of  the  contracting  parties,  and  limits  the  dam- 
ages to  the  direct  pecuniary  loss  resulting  from  the  breach.  But  there 
are  instances,  says  Chitty,  in  which  the  defendant  may  be  regarded  in 
the  light  of  a  wrongdoer  in  breaking  his  contract,  and  where  this  is  the 
case  a  greater  latitude  is  allowed  the  jury  in  assessing  the  damages.'- 
It  was  held  by  the  Constitutional  Court  of  South  Carolina,  in  an  action 
of  assumpsit,  that  the  existence  of  fraud  was  sufficient  to  warrant  the 
jury  in  departing  from  the  ordinary  rule  upon  this  subject.  "Assump- 
sit, "  said  Court,  "  is  nomen  generalissiminn,  under  which  a  great  variety 

1  Part  of  the  reporter's  statement  of  the  case  is  omitted. 

2  Chitty  on  Cont.  767. 


JONES   AND   WIFE    V.    STEAMSHIP    CORTES.  105 

of  special  cases  are  embraced.  It  includes  every  case  by  simple  con- 
tract, whether  in  the  nature  of  a  warranty,  a  promise  to  pay  money,  or 
an  undertaking  to  do  or  perform  any  act  from  whence  a  promise,  either 
express  or  implied,  can  arise.  The  damages  to  be  recovered  must 
always  depend  on  the  nature  of  the  action  and  the  circumstances  of  the 
case.  The  difference  of  opinion  which  seem  to  exi.st  on  the  subject, 
we  apprehend,  has  arisen  from  confounding  the  distinctions  between 
the  different  forms  of  assumpsit.  In  an  action  for  money  had  and 
received,  the  actual  amount  of  money  received,  with  interest  in  some 
cases,  should  be  the  measure  of  damages.  In  an  action  for  goods,  or 
any  specific  chattel,  sold  and  delivered,  the  value  of  the  thing  sold; 
and  so  in  all  other  cases  which  furnish  a  standard  by  which  the  jury 
can  be  governed.  Bi:t  in  cavSes  of  fraud,  and  other  cases  mereh-  sound- 
ing in  damages,  the  jury  may  give  a  verdict  to  the  whole  amount  of  the 
injury  sustained,  or  imaginary  damages."  Rose  v.  Beattie,  (1820)  2 
Nott  &  McCord,  538,  541. 

This  case  was  subsequently  approved  in  Gar'ret  v.  Stuart,  i  McCord, 

514. 

Sedgwick,  in  his  work  on  the  measure  of  danaages,  combats  this  doc- 
trine with  great  earnestness  and  abilit}-.  After  discussing  the  matter 
at  some  length,  he  says:  "On  the  whole,  therefore,  notwithstanding 
the  cases  cited  in  the  notes,  and  the  authorit}-  of  the  tribunals  b}'  which 
they  are  decided,  I  conclude  that  so  long  as  our  present  forms  of  action 
and  rules  of  pleading  and  evidence  exist,  their  clear  and  irresistible  result 
is,  that  the  damages  in  actions  of  contract  are  to  be  limited  to  the  con- 
sequence of  the  breach  of  the  contract  alone,  and  that  no  regard  is  to 
be  had  to  the  motives  which  induce  the  violation  of  the  agreement."^ 
But  in  a  note  on  the  same  page,  he  adds  :  "I  am  far  from  desiring  to 
express  any  opinion  in  favor  of  the  doctrine  of  the  text  ;  on  the  con- 
trary, if  the  plaintiff  in  an  Anglo-Saxon  court  of  justice  shall  ever  be 
permitted  to  state  his  complaint  according  to  the  actual  facts,  and  not 
be  compelled  to  use  an  unmeaning  formula,  I  can  see  no  reason,  greatly 
as  legal  relief  would  be  thus  extended,  why  exemplary-  damages  should 
not  be  given  for  a  fraudulent  and  malicious  breach  of  contract,  as  well 
as  for  any  other  willful  wrong.  " 

In  the  present  case,  it  is  not  important  to  inquire  which  of  these 
opinions,  in  relation  to  the  rule  at  common  law,  is  correct.  The 
injuries  complained  of  were  of  such  a  character  that  redress  ma\- 
undoubtedly  be  obtained  in  some  form,  and  under  our  practice  there  is 
no  reason  why  the  plaintiffs  should  be  compelled  to  resort  to  different 
actions  for  the  relief  to  which  the  law  entitles  them. 

We  have  but  one  form  of  action  and  nothing  more  is  required  than  a 
statement  in  ordinary'  language  of  the  facts  relied  upon  for  a  recover}-. 
The  statute  makes  no  distinction  in  matters  of  form  between  actions  of 
contract  and  those  of  tort,  and  relief  is  administered  without  reference 

»  Sedg.  on  Dam.  20S. 


106  EFFECT   IN   RELATION   TO    SUBSTANTIVE   LAW. 

to  the  technical  and  artifical  rules  of  the  common  law  upon  this  sub- 
ject. DiflFerent  causes  of  action  may  be  united  in  the  same  complaint, 
and  the  only  restrictions  upon  the  pleader  in  this  respect  are  those 
imposed  by  the  statute.  Our  system  of  pleading  is  formed  upon  the 
model  of  the  civil  law,  and  one  of  its  principal  objects  is  to  discourage 
protracted  and  vexatious  litigation.  It  is  the  duty  of  the  courts  to 
assist  as  far  as  possible  in  the  accomplishment  of  this  object,  and  it 
should  not  be  fritted  away  by  the  application  of  rules  which  have  no 
legitimate  connection  with  the  sj'stem.  The  provisions  for  avoiding  a 
multiplicity  of  suits  are  to  be  liberally  and  beneficially  construed,  and 
we  see  no  reason  why  all  matters  arising  from  and  constituting  part  of 
the  same  transaction  should  not  be  litigated  and  determined  in  the 
same  action.  Causes  of  complaint  diflfering  in  their  nature,  and  having 
no  connection  with  each  other,  cannot  be  united,  but  the  object  of  this 
rule  is  to  prevent  the  confusion  and  embarrassment  which  would  nec- 
essarily result  from  the  union  of  diverse  and  incongruous  matters,  and 
it  has  no  application  to  a  case  embracing  a  variety  of  circumstances  so 
connected  as  to  constitute  but  one  transaction.  The  statute  provides 
that  a  claim  for  injuries  to  the  person  shall  not  be  joined  with  a  claim 
for  injuries  to  character.  In  a  case  in  New  York,  involving  the  con- 
struction of  a  similar  provision  in  the  code  of  that  state,  it  was  held 
that  a  demurrer  to  the  complaint,  the  facts  stated  being  sufficient  to 
sustain  an  action  either  for  assault  and  battery  or  for  slander,  was  not 
well  taken.  The  court  said:  "The  complaint,  in  fact,  contains  a 
single  cause  of  action.  The  allegations  relate  to  a  single  transaction. 
The  complaint  purports  to  give  the  history  of  one  occurrence,  and  no 
more.  This  history  embraces  what  was  done  and  what  was  said  on  the 
occasion.  Each  constitutes  a  part  of  the  r^j' ^^.s^o^.  What  is  alleged  to 
have  been  done,  would,  if  established  upon  the  trial,  sustain  an  action 
for  personal  injur}\  What  is  alleged  to  have  been  said,  would,  if  estab- 
lished upon  the  trial,  sustain  an  action  for  injury  to  the  reputation. 
The  whole  together,  constituting  as  it  does  a  single  transaction,  makes 
but  a  single  cause  of  action.  The  plaintiff  brings  his  action  upon  the 
whole  case,  to  recover  damages  for  the  compound  injury  he  has  sus- 
tained .  .  .  When  it  comes  to  trial,  all  that  was  said  and  all  that  was 
done  become  the  proper  subjects  of  investigation,  and  a  single  verdict 
adjusts  the  rights  of  the  parties.  "  ' 

In  Robinson  v.  Flint,  i6  How.  Pr.  240,  a  cause  of  action  on  tort  was 
united  with  a  cause  of  action  on  contract,  and  it  appearing  that  these 
causes  of  action  arose  out  of  the  same  matter,  it  was  held  that  they 
were  properly  united.  The  code  contains  a  special  provision  upon  this 
subject,  but  we  think  that  the  effect  of  our  statute  is  the  same,  and  that 
the  construction  would  not  be  altered  by  the  incorporation  of  a  similar 
provision.  Having  adopted  a  system  which  rejects  all  distinctions  in 
matters  of   form,  it  would  be  folly  to  subject  it  to  the  operation  of 

1  Brewer  v.  Temple  (1857),  15  How.  Pr.  286. 


JONES   AND   WIFE   V.    STEAMSHIP   CORTES.  107 

niles  founded  upon  distinctions  of  this  nature.  Every  action  under 
our  practice  may  be  properl}-  termed  an  action  on  the  case,  and  it  would 
seem  that  any  ground  of  relief  which  can  be  regarded  as  a  part  of  the 
case,  may  with  propriety  be  included  in  the  action. 

These  views  are  decisive  of  the  question  presented  in  this  case,  and 
there  is  no  necessity  for  a  more  particular  reference  to  the  points  made 
by  counsel.  The  objections  to  the  verdict  are  based  upon  the  distinc- 
tion at  common  law  between  actions  of  contract  and  those  of  tort,  and 
this  distinction,  and  the  rules  founded  upon  it,  are  alike  inapplicable 
to  our  practice  The  plaintiffs  have  brought  their  suit  upon  the  whole 
case,  to  recover  damages  not  only  for  the  breach  of  the  contract,  but 
for  the  wrongs  and  injuries  committed  by  the  owners  and  agents  of  the 
defendant  in  that  connection.  The  defendant  is  liable  for  all  the  dam- 
ages resulting  from  these  causes,  and  there  is  certainly  no  impropriety 
in  adjusting  the  whole  matter  in  one  controversy.  There  was  no  error 
in  permitting  the  plaintiffs  to  give  evidence  of  the  fraud  practiced  in 
the  inception  of  the  contract.  The  tendency  of  the  evidence  on  this 
point  was  to  show  a  predetermination  not  to  carry  out  the  agreement, 
and  there  is  no  doubt  that  this  was  a  proper  subject  of  consideration  in 
connection  with  the  tortious  acts  subsequently  committed.  If  these 
acts  were  such  as  the  law  could  not  recognize  for  the  purposes  of  redress, 
the  admission  of  this  evidence  would  probably  be  sufl&cient  to  reverse 
the  judgment ;  but  under  the  circumstances  we  do  not  see  upon  what 
principle  it  could  have  been  rejected.  It  was  proper  that  the  whole 
case  should  be  submitted  to  the  jury,  and  damages  awarded  commen- 
surate with  the  injuries  sustained.  It  was  a  case  of  unmitigated  hard- 
ship, and  the  acts  complained  of  were  not  only  unnecessary,  but  with- 
out any  excuse  or  palliation  whatever.  They  were  acts  of  willful 
oppression,  and  it  would  be  a  reproach  to  the  law  if  nothing  could  be 
recovered  but  the  mere  percuniary  loss  resulting  from  the  breach  of  the 
contract. 

We  think  that  no  principle  of  law  has  been  violated,  and  that  the 
jury  exercised  proper  discretion  in  assessing  the  damages. 

Judgynent  affirmed. 


108  EFFECT   IN    RELATION   TO   SUBSTANTIVE   LAW. 

£)IXON  V.   CALDWELL. 

Supreme  Court  of  Ohio,  December  Term,   1864. 

[15  O.  S.  412.] 

Error  to  the  district  court  of  Ross  County. 

The  defendant  in  error,  Caldwell,  was  the  owner  of  a  military  bounty 
land  warrant,  No.  31.694,  for  160  acres,  issued  to  him  by  the  govern- 
ment of  the  United  States,  under  the  act  of  congress  of  Februar}-  11, 
1847.  Shortly  after  he  received  it,  the  warrant  was  fraudulently  ob- 
tained from  him,  and  replaced  by  a  spurious  or  forged  warrant,  which, 
for  a  long  time,  he  supposed  genuine. 

Without  the  knowledge  or  consent  of  Caldwell,  the  genuine  warrant 
was  sold  and  assigned  to  George  Dixon,  Jr.,  the  plaintiff  in  error,  by 
some  person  who  represented  Caldwell  and  forged  his  name  thereto. 
Dixon,  being  ignorant  of  the  fraudulent  manner  in  which  the  warrant 
had  been  obtained,  and  ignorant  also  of  its  forged  assignment,  on  the 
7th  day  of  Februar}',  1849,  purchased  the  warrant,  and  paid  therefor 
$130,  believing  the  assignment  to  be  the  genuine  assignment  of  Cald- 
well, and  that,  by  his  purchase,  he  was  acquiring  full  and  complete 
title  to  the  warrant. 

Having  thus  in  good  faith  acquired,  as  he  supposed,  the  warrant, 
Dixon,  without  any  notice  of  the  fraudulent  manner  in  which  it  had 
been  obtained,  or  of  the  forgery,  located  the  same  upon  the  land  de- 
scribed in  the  petition,  and  obtained  a  patent  therefor  before  the  com- 
mencement of  the  original  suit. 

Upon  this  state  of  fact  Caldwell  sought  to  charge  Dixon,  as  his  trus- 
tee, for  the  land  so  located  ;  and,  in  his  petition,  prayed  for  a  convey- 
ance of  the  portion  of  the  lands  remaining  unsold ;  for  an  account  of 
the  proceeds  of  the  part  which  had  been  sold,  and  for  a  judgment 
against  Dixon  for  the  amount  found,  with  interest  ;  also  for  an  account 
of  the  rents  and  profits. 

In  the  common  pleas  Dixon  was  adjudged  to  be  a  trustee  of  the 
plaintiff  for  the  lands  ;  and  the  relief  prayed  was  granted.  The  judg- 
ment was,  on  error,  affirmed  by  the  district  court ;  to  reverse  this 
judgment  of  affirmance  is  the  object  of  the  present  petition  in  error. 

W.  H.  Safford,  for  plaintiff  in  error. 

Alfred  Yaplc,  for  defendant  in  error. ^ 

White,  J. — The  distinction  between  legal  and  equitable  rights  exists 
in  the  subjects  to  which  they  relate,  and  is  not  affected  by  the  form  or 
mode  of  procedure  that  may  be  prescribed  for  their  enforcement.  The 
code  abolished  the  distinctions  between  actions  at  law  and  suits  in 
equity,  and  substituted  in  their  place  one  form  of  action  ;  yet,  the  rights 
and  liabilities  of  parties,  legal  and  equitable,  as  distinguished  from  the 

'  The  arguments  are  omitted. 


DIXON    V.    CALDWELL.  109 

mode  of  procedure,  remain  the  same  since,  as  before,  the  adoption  of 
the  code.  Dixon,  the  defendant  below,  is  the  legal  owner  of  the  land, 
in  controversy,  as  patentee.  This  is  conceded  by  Caldwell,  the  plain- 
tiff below,  but  he  claims  to  be  the  equitable  owner,  and  that  Dixon  is 
his  trustee,  and,  as  such,  in  equit}-,  bound  to  account  for  the  proceeds 
of  the  portion  of  the  land  sold  and  surrender  the  remainder. 

There  is  no  pretence  of  an  express  trust ;  nor  is  it  claimed  that  the 
defendant  acquired  the  property  in  fraud  or  by  other  vmfair  means. 
The  propert}',  therefore,  having  been  fairly  acquired  before  a  construc- 
tive trust  can  be  raised  in  equity,  and  fastened  upon  the  defendant,  so 
as  to  convert  him  into  a  trustee  for  the  plaintiff,  the  circumstances 
of  the  transaction  must  appear  to  be  such,  that  it  would  be  violating 
some  principle  of  equity  to  allow  the  defendant  to  retain  the  legal  title 
to  the  land  for  his  own  benefit. 

The  controversy  here  is  not  solely  in  regard  to  the  land  warrant.  The 
legal  title  to  that  was  clearly  vested  in  the  plaintiff,  and  for  its  conver- 
sion he  had  a  plain  legal  remed}-  against  the  defendant  for  its  value ; 
and,  before  it  was  lost  in  entering  the  land,  for  its  recovery  in  specie. 

The  question  is,  whether  in  the  light  of  equity,  the  measure  of  legal 
relief  is  to  be  regarded  as  inadequate  ;  and  the  defendant  required,  by  a 
court  of  equity,  to  surrender  the  land  to  which  he  acquired  the  legal 
title  in  good  faith,  and,  as  he  supposed  for  his  own  benefit,  by  the  com- 
bined use  of  the  warrant  and  his  own  means,  industr3-,  and  enterprise. 

The  defendant  claims  to  be  a  bo7ia  fide  purchaser  of  the  land  in  con- 
troversy for  value,  without  notice  of  the  plaintiff  's  rights  ;  and  relies 
for  his  defence  upon  the  rules  of  equity  for  the  protection  of  such  pur- 
chasers. 

The  land  warrant  in  question  was  assignable  in  law,  was  in  the 
possession  and  apparent  ownership  of  the  vendor,  and  the  assignment 
was  regular  in  form.  The  defect  in  the  vendor's  title  was  not  apparent, 
and  there  was  no  reasonable  ground  for  suspicion  that  the  assignment 
had  been  forged.  The  defendant  purchased  and  paid  full  value  for  the 
warrant,  and  is  not  chargeable  with  a  want  of  reasonable  diligence  in 
so  doing.  Having  no  reason  to  suspect  the  existence  of  the  plaintiff's 
title  to  the  warrant,  he  was,  in  equity  and  good  conscience,  chargeable 
with  no  duty  toward  him  in  relation  to  its  future  use.  If  he  withheld 
it  from  entry,  he  would  have  been  liable  to  return  it  to  the  plaintiff  or 
pay  him  its  value.  The  good  faith  of  his  purchase  would  have  been 
no  answer  to  the  plaintiff's  legal  demand.  After  the  location  of  the 
warrant,  the  holder  of  the  legal  title  thereof  acquired  an  equity  in  the 
land  upon  which  the  location  was  made ;  and  before  the  defendant 
clothed  himself  with  the  legal  title,  and  while  the  equities  were  open 
between  the  parties,  Caldwell's  equitj',  being  older  in  time,  would  have 
been  better  in  right.  But  Dixon,  unaffected  with  fraud  or  notice,  and 
upon  a  valuable  consideration  paid,  having  obtained  the  legal  title  to 


110  EFFECT   IN    RELATION   TO   SUBSTANTIVE   LAW. 

the  land  in  controversy,  brings  himself  within  the  protection  awarded 
in  equity  to  the  holder  of  the  legal  estate.  ^ 

The  conclusion,  therefore,  at  which  we  have  arrived,  is,  that  Dixon 
cannot  be  required  to  surrender  the  legal  title  of  the  unsold  land  to 
the  plaintiff  below,  nor  to  account  for  the  proceeds  of  the  part  sold ; 
and  that  the  court  erred,  in  requiring  him  to  do  so.  But,  as  before 
stated,  he  is  under  a  clear  legal  liability  for  the  value  of  the  warrant. 
The  judgment  of  the  district  court,  and  of  the  court  of  common  pleas, 
is  therefore  reversed,  and  the  cause  remanded  to  the  common  pleas  for 
further  proceedings. 

Brinkerhoff,  C.  J.,  and  Scott,  Dav  and  Welch,  JJ.,  concurred. 


/      ;W  ^  (fP  GWALTNEY  v.  CANNON. 

AT      *^SuPREME  Court  of  Judicature  of  Indiana,  May  Term,  1859. 

^     ^  [31  /fid.  227.] 

tO*  -^.f  /  '      Appeal  from  the  Gibson  Common  Pleas. 

Q     /         Ray,  J. — Complaint  by  the  appellee  against  the  appellant  for  main- 
»  /^  taining  and  providing  for  the  wards  of  the  latter. 

V  The  question  is  upon  the  sufficiency  of  the  complaint,  which  is  as 

follows : 

"  Edward  Cannon  complains  of  James  Gwahney,  and   says  that  heretofore, 

to  wit,  on  the day  of  ,   186 — ,  the  defendant  was,  by  the   Warrick 

Court  of  Common  Pleas,  duly  appointed  guardian  of  the  persons  and  estates  of 
Lafayette  Gwaltney,  John  H.  Gwaltney,  Anna  Gwaltney,  and  Noah  Gwaltney, 
minor  heirs  of  Noah  Gwaltney,  late  of  Warrick  county,  deceased  ;  that  said 
defendant  qualified  and  took  upon  himself  the  burden  of  said  trust  as  such  guar- 
dian. And  plaintiff  further  says  that  said  defendant,  as  such  guardian,  is 
indebted  to  the  plaintiff  in  the  sum  of  $679,  for  keeping,  boarding,  and  clothing 
his  said  wards,  and  for  money  paid  and  expended  for  medical  attendance  on  said 
wards,  for  three  years,  to  wit,  from  the  month  of  March,  1864,  to  the  month  of 
March,  1867  ;  that  said  sum  of  $679  is  wholly  unpaid.  Wherefore,  plaintiff 
asks  for  judgment  for  $679,  and  other  proper  relief." 

The  defendant  demurred  to  the  complaint,  for  the  following  grounds 
of  objections  : 

"  I.  That  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action. 

"  2.     That  there  is  a  defect  of  parties  defendant." 

The  demurrer  was  overruled  by  the  court,  and  exception  was  taken 
by  the  appellant  at  the  time. 

It  is  objected  by  appellant,  that  there  is  no  averment  that  the  expend- 
iture for  clothing,  and  medical  attendance,    and  the   boarding  of  the 

1  Part  of  the  opinion  is  omitted. 


CONAUGHTV   7'.    NICHOLS.  HI 

wards,  was  at  the  request  of  the  appellants,  or  upon  any  promise  made 
by  him  to  pay  for  the  same.  In  answer  to  this  objection,  we  are  referred 
to  the  forms  given  by  the  statute,  numbered  lo  and  11,2  G.  &  H.  376. 
These  forms  upon  actions  for  goods  sold  and  delivered,  and  materials 
furnished  to  the  defendant,  and  for  work  and  labor  done  for  the  defend- 
ant, do  not  require  an  allegation  that  the  defendant  promised  to  pa}'. 
But  in  all  these  instances  the  law  implies  the  promise  from  the  facts 
stated  ;  and  our  statute  simply  requires  the  statement  of  facts,  and  if 
upon  these  facts  the  law  inii)lies  a  promise,  the  complaint  will  be  good. 
But  where  the  action  is  against  one  for  goods  sold  to  another,  there  the 
law  does  not  imply  a  request  or  promise,  and  that  averment  must  be 
made. 

The  case  before  us  does  not  state  facts  which  at  law  impose  any  obli- 
gation upon  the  guardian.  There  is  no  averment  that  he  failed  to  pro- 
vide, within  the  means  in  his  hands  as  guardian,  for  the  reasonable 
wants  of  his  wards,  and  under  such  circumstances  a  volunteer  can  not 
rentier  himself  the^reditor  of  the  guardian. 

The  demurrer  should  have  been  sustained  to  the  complaint. 

Jiidgmoit  reversed,  with  costs ;  and  the  cause  remanded  for  further 
proceedings.  ^ 


CONAUGHTY  v.  NICHOLS. 

Court  of  Appeals  op  New  York,  March  17,   1870. 

[42  N.   y.  83.] 

This  is  an  appeal  by  the  defendants  from  a  judgment  of  the  General 
Term  of  the  Supreme  Court,  fourth  district,  reversing  a  judgment  en- 
tered upon  the  report  of  a  referee.  The  action  was  brought  against  the 
defendants  as  factors,  to  recover  of  them  the  proceeds  of  merchandise 
consigned  to  them  for  sale  by  the  plaintiff.  The  plaintiff  alleged  in 
his  complaint,  and  proved  upon  the  trial,  among  other  facts,  that  dur- 
ing the  months  of  December,  i860,  and  January,  1861,  the  plaintiffs, 
who  reside  in  Saratoga  county,  consigned  to  the  defendants,  who  were 
commivSsion  merchants,  doing  business  in  the  city  of  New  York,  a  quan- 
tity of  dried  fiuit  and  butter,  to  be  sold  by  the  defendants,  and  the  net 
proceeds  to  be  remitted  to  the  plaintiff;  that  the  defendants  received 
and  sold  the  said  fruit  and  butter,  realizing  therefor  $690.82,  and  that, 
after  deducting  all  the  expenses  of  sale,  there  was  due  the  plaintiff"  the 
sum  of  $618.43,  which  he  demanded  of  the  defendants,  who  omitted 
and  refu.sed  to  pay  the  same  to  the  plaintiff.  The  complaint  contains 
the  following  allegation  : 

I  Cf.  Woodford  v.  Leavenworth  (iS6o),  14  Ind.  311,  314. 


U2  EFFECT   IN    RELATION   TO    SUBSTANTIVE    LAW. 

'•J}2d  have  converted  the  same  to  their  ozvfi  t<se,  to  the  damage  of  the  said 
plaintiff  of  the  said  sum  of  $618.43,  for  which  said  last  mentioned  sum  the  said 
plaintiff  demands  judgment  against  said  defendants,  besides  interest,  together 
with  the  costs  of  this  action." 

When  the  plaintiff  closed  his  evidence  the  defendants'  counsel  nioved 
for  a  nonsuit,  upon  the  grounds  : 

1.  That  the  action  should  have  been  brought  in  the  name  of  the 
plaintiff  and  John  H.  Conaughty,  as  they  were  the  owners  of  the 
property. 

2.  That  the  defendants  were  simply  agents  of  the  plaintiff  and  are 
only  liable  in  an  action  on  contract,  and  are  not  liable  in  an  action  for  a 
tort. 

3.  That  there  was  no  conversion  of  the  plaintiff's  property  by 
defendants. 

4.  That  the  plaintiff  had  failed  to  establish  the  cause  of  action  set 
out  in  the  complaint ;  and  that  there  was  a  total  failure  of  proof  within 
the  provisions  of  section  171  of  the  Code. 

The  plaintiff 's  counsel  asked  leave  to  amend  the  complaint  by  strik- 
ing out  the  allegation,  "that  the  defendants  converted  the  money  to 
their  own  use,"  &c.  ;  and  insisted  that  the  action  was  upon  contract. 
The  referee  refused  to  allow  the  amendment  on  the  ground  that  the 
effect  would  be  to  change  the  fonti  of  the  action  from  tort  to  contract ; 
and  nonsuited  the  plaintiff  upon  the  ground  that  the  cause  of  action 
stated  in  the  complaint  was  for  a  tort,  and  the  proof  established  a  cause 
of  action  upon  contract.  The  plaintiff's  counsel  excepted  to  the  deci- 
sion of  the  referee,  and  appealed  to  the  General  Term,  where  the  judg- 
ment was  reversed  ;  the  defendants  appeal  to  this  court. 
Charles  S.  Lester,  for  the  appellant. 
William  A.  Beach,  for  the  respondent. 

Ing.\lls,  J. — The  plaintiff  established  a  cause  of  action  against  the 
defendants  upon  contract,  and  was  entitled  to  recover  the  amount  of  his 
claim,  unless  the  referee  was  correct  in  holding  that  the  complaint  con- 
tained but  one  cause  of  action,  and  that  was  for  a  tort.  If  the  words 
"  a7id  have  converted  the  same  to  their  own  use  "  had  been  omitted  in  the 
complaint,  it  cotild  not  reasonably  be  contended,  that  the  same  was  not 
ada])ted  to  the  cause  of  action  established  by  the  evidence.  The  case, 
therefore,  .seems  to  be  reduced  to  the  proposition,  whether  the  plaintiff, 
having  alleged  facts  con.stititting  a  cause  of  action,  and  having  sus- 
tained them  by  proof  upon  the  trial,  should  have  been  nonsuited, 
because  the  pleading  contained  an  allegation  adapted  to  a  complaint  in 
an  action  ex  delicto,  and  which  was  unnecessary  to  be  stated  or  proved, 
to  justify  a  recovery  on  contract.  We  are  of  opinion  that  no  such  rigid 
rule  of  construction  in  regard  to  pleading  should  prevail  under  th^ 
liberal  system  introduced  by  the  Code.  It  is  not  only  contrary  to  the 
express  provisions  of  the  Code,  but  at  variance  with  the  doc-sions  which 
have  been  made,  construing  and  enforcing  the  same.     Section  140  of 


CONAUGHTY   V.    NICHOLS.  113 

the  Code  provides  :  "  All  forms  of  pleading  heretofore  existing  are  abol- 
ished." Section  142  prescribes  what  a  complaint  shall  contain:  "A 
plain  and  concise  statement  of  the  facts  constituting  a  cause  of  action, 
without  unnecessary  repetition. "  Section  169  :  "No  variance  between 
the  allegation  in  a  pleading  and  the  proof  shall  be  deemed  material, 
unless  it  have  actually  misled  the  adverse  party,  to  his  prejudice,  in 
maintaining  his  action  or  defence  upon  the  merits,  &c.  "  Section  159  : 
' '  In  the  construction  of  a  pleading  for  the  purpose  of  determining  its 
effect,  its  allegations  shall  be  liberally  construed  with  a  view  of  sub- 
stantial justice  between  the  parties."  Section  170:  "  When  the  vari- 
ance is  not  material,  as  provided  in  the  last  section,  the  court 
may  direct  the  fact  to  be  found  according  to  the  evidence,  or  may  order 
an  immediate  amendment  without  costs."  Section  160  provides  that 
irrelevant  or  redundant  matter  inserted  in  a  pleading  may  be  stricken  out 
on  motion  ;  and  the  court  may  also  require  the  pleading  to  be  made 
more  certain.  From  the  foregoing  provisions  of  the  code,  it  is  very 
apparent,  that  it  was  the  intention  of  the  legislature  to  reduce  pleading 
to  a  plain  statement  of  the  facts  constituting  the  cause  of  action  or 
defence,  with  a  claim  for  such  relief  as  the  facts  justified  ;  and  to  pre- 
vent the  sacrifice  of  substantial  right  to  mere  form.  The  courts  have 
generally  been  inclined  fairly  to  give  effect  to  the  new  system  of 
pleading  thus  introduced,  as  will  appear  by  reference  to  some  of  the 
decisions  which  have  been  made  upon  this  subject.  In  Jordan  P/ank- 
road  V.  Morley,^  Judge  Denio  remarks  :  "In  pleading  under  the  code, 
it  is  sufficient  to  state  the  facts  from  which  the  law  infers  a  liability,  or 
implies  a  promise."  In  Zabriskie  v.  Smith,-  the  same  judge  says: 
"Under  our  present  system  of  pleading,  I  conceive  that  a  pleading 
should  contain  the  substance  of  a  declaration  under  the  former  system. 
It  is  sufficient,  however,  that  the  requisite  allegations  can  be  fairly 
gathered  from  all  the  averments  of  the  complaint,  though  the  statement 
of  them  may  be  argumentative,  and  the  complaint  deficient  in  technical 
language."  In  Wright  v.  Hooker,'^  Edwards,  J.,  says:  "The  very 
object  of  the  new  system  of  pleading  was  to  enable  the  court  to  give 
judgment  according  to  the  facts  stated  and  proved,  without  reference  to  the 
fortn  used,  or  to  the  legal  conclusion  adopted  by  the  pleader. ' '  The  reas- 
oning of  the  court  is  to  the  same  effect  in  Olcott  v.  Carroll.^  Although 
facts  are  stated  in  a  pleading  which  are  unnecessary  to  be  proved  to 
constitute  a  cause  of  action  or  defence,  they  may  be  disregarded  upon 
the  trial.*  Or  they  may  be  stricken  out  on  motion  before  trial.  In 
the  case  at  bar,  the  complaint  contained  an  ample  statement  of  facts 
constituting  a  cause  of  action  on  contract,  and  such  allegations  were 

1  23  N.  Y.  553. 

2  13  N.  Y.  330. 

3  10  N.  Y.  59. 

4  39  N.  Y.  436.     See  also  Emory  v.  Pease,  20  N.  Y.  62  ;  Butterworth  v.  O'Brian,  24  Howard, 
440  ;  Goff  V.  Edgerton,  18  Abb.  3S1  ;  HaU  v.  Hall,  38  Howard,  97. 

5  Bedell  v.  Carll,  33  N.  Y.  581. 


114  e;ffect  in  relation  to  substantive  law. 

clearly  supported  by  the  evidence,  yet  the  plaintiff  was  depri  v-ed  of  a 
judgment,  because  the  complaint  contained  an  allegation  which  was 
unnecessary  to  such  cause  of  action,  and  which  might  well  have  been 
disregarded.      The  counsel  for  the  appellant  relies  upon  the  case  of 

Walter  v.  Bennett^  to  sustain  the  decision  of  the  referee.  In  my  judg- 
ment, that  case,  so  far  as  the  question  of  pleading  is  concerned,  is  in 
entire  harmony  with  the  decisions  to  which  we  have  referred,  and  inter- 
posed no  obstacle  to  a  recovery  by  the  plaintiff  in  this  action.     In 

Walter  v.  Benyiett,  the  complaint  is  not  set  out,  but  the  statement  in 
regard  to  the  form  of  the  action  js  as  follows  :  ' '  The  action  was  brought 
to  recover  the  possession  of  a  draft  alleged  to  belong  to  the  plaintiff,  and 
to  be  wrongfully  detained  by  the  defendant,  and  also  to  recover  the 
possession  of  $7,250  of  money  alleged  to  be  the  property  of  the  plaintiff, 
wrongfully  detained  by  the  defendant.  " 

Judge  Brown  remarks:  "The  form  of  the  plaintiff's  action  is  ex 
delicto,  and  before  he  can  recover  he  must  show  that  the  defendant  com- 
mitted a  wrong,  or  in  other  words,  wrongfully  withheld  the  draft  from 
the  true  owner. "  All  that  this  case  decides  is  that  a  party  shall  not  be 
allowed  to  recover  for  a  cause  of  action  which  is  not  alleged  and  proved. 
So  far  as  that  case  discloses  what  the  pleadings  were,  the  plaintiff  al- 
leged simply  a  wrongful  detention  of  a  draft  or  of  a  sum  of  money,  the 
possession  whereof  the  plaintiff  claimed,  and,  having  failed  to  prove 
what  was  alleged,  was  nonsuited.  That  case  does  not  hold  that,  when 
facts  are  stated  constituting  a  cause  of  action  on  contract,  a  party  should 
be  nonsuited  because  the  complaint  contains  an  allegation  suited  to  an' 
action  ex  delicto;  in  other  words,  because  the  plaintiff  stated  too  much 
in  his  complaint.  If  the  complaint  in  question  had  merely  stated  facts 
sufficient  to  authorize  a  recovery-  for  a  wrongful  detention  of  the  money, 
and  vipon  the  trial,  the  plaintiff  had  applied  to  amend  b\' inserting  facts 
appropriate  to  a  cause  of  action  on  contract,  and  thereby  changing  the 
form  and  character  of  the  action,  the  application  should  have  been  de- 
nied. That,  however,  was  not  the  case,  as  the  facts  were  fully  stated, 
and  the  defendants  apprised  of  what  they  were  to  meet  upon  the  trial, 
and  there  was  no  pretense  that  thej^  were  surprised.  If  the}^  chose  to 
accept  the  complaint  without  moving  to  strike  out  any  portion  of  it,  or 
to  compel  the  plaintiff  to  make  it  more  definite,  or  to  elect  in  regard  to 
the  form  of  action,  they  should  not,  upon  the  trial,  have  been  allowed 
to  prevent  a  recovery  by  the  plaintiff  of  a  judgment  for  the  amount  of 
his  demand. 

It  is  further  insisted  by  the  counsel  for  the  appellant  that  the  sum- 
mons is  for  relief,  and  therefore  not  adapted  to  a  recovery  in  the  form 
claimed  by  the  plaintiff  upon  the  trial.  If  so,  the  defendants'  remedy 
was  by  motion.  It  is  quite  probable  that  the  plaintiff  intended,  down 
to  the  trial,  to  recover  against  the  defendants  for  a  wrongful  con- 
version of  the  proceeds  of  the  sale  of  the  property  consigned  to  them, 

1  16N.  Y.  251,  ante,  p.  loi. 


ROSS    Z'.    MATHEK.  115 

and  doubtless  the  mistake  should  have  been  fatal  but  for  the  ample 
statement  of  facts  contained  in  the  complaint,  which  justified  a  recovery 
on  contract  for  the  amount  of  his  demand.  It  does  not  follow  that,  be- 
cause the  parties  go  down  to  the  trial  upon  a  particular  theory,  which 
is  not  supported  by  the  proof,  the  cause  is  to  be  dismissed,  when  there 
are  facts  alleged  in  the  complaint,  and  sustained  by  the  evidence,  suffi- 
cient to  justify  a  recovery  upon  a  different  theory  or  form  of  action. 
There  is  no  substantial  reason  why,  under  such  circumstances,  a  party 
should  be  turned  out  of  court  and  compelled  to  commence  a  new  action, 
thereb}'  occasioning  expense,  delay  and  multiplicity  of  suits  to  accom- 
plish a  just  result.  It  is  against  the  spirit  and  letter  of  the  code,  and 
substantial  justice  is  not  promoted  thereby.  The  judgment  of  the  Gen- 
eral Term  should  be  affirmed  with  costs  and  judgment  absolute  entered 
in  favor  of  the  plaintiff. 
All  concur  for  affirmance. 

Judgment  affirmed  and  J7idgfnent  absolute  for  plaintiff. 


ROSS  :■.   MATHER.  . 

Commission  of  Appeals  of  New  York,  September,  1872.     /|  . 

[51  N.    Y.   108.]  C^  ^         ., 

^  C^,    ^^^ 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court  in     A^^^^ 
the  seventh  judicial  district,  in  favor  of  plaintiff,  entered  upon  an  order     ft 
denying  a  motion  for  a  new  trial,  and  directing  judgment  upon  verdict.'  Co^   /U 

The  action  was  bj-nno-ht  to  recover  rlnttiao-ps  unon  th^  ^sale  of  a  horse.    7[l^^^JL 
The  summons  itTthis  case  stated  that  the  plaintiff  would  apply  to     l^y/^ 
the  court  for  the  relief  demanded  in  the  complaint. 

The  complaint  alleged  in  substance  that  the  defendant  had  sold  to 
the*plaintiff  a  horse  which  was  lame  in  one  hind  leg  ;  that  on  the  sale 
the  defendant  warranted,  and  falsely  and  fraudulently  represented,  that 
the  lameness  resulted  from  an  injury-  to  the  horse's  foot,  that  it  was  in 
his  foot,  and  nowhere  else,  that  when  his  foot  grew  out  he  would  be 
well,  and  that  he  had  only  been  lame  for  two  weeks  ;  that  the  plaintiff, 
relying  upon  this  warranty  and  representation,  and  believing  them  to 
be  true,  purchased  and  paid  for  the  horse.  It  was  further  alleged  that 
at  the  time  of  this  warranty,  and  false  and  fraudulent  representations, 
the  horse  was  not  lame  in  his  foot,  but  in  his  gambrel  joint,  which  had 
been  for  more  than  two  weeks  badly  diseased,  and  from  which  his 
lameness  originated,  which  the  plaintiff,  at  the  time  of  the  sale  and  of 
making  such  warranty  and  representations,  well  knew  ;  that  the  horse 
was  of  little  value ;  and  that  by  means  of  the  promises  the  defendant 

1  Reported  below,  47  Barb.,  5S2. 


116  EFFECT  IN   RELATION   TO   SUBSTANTIVE   LAW. 

falsely  and  fraudulently  deceived  him  in  the  sale  of  the  horse,  to  the 
damage  of  $500  ;  and  he  demanded  judgment  for  $500  and  costs. 

The  answer  admitted  the  sale  of  the  horse  and  the  payment  of  the 
price,  and  denied  all  the  other  allegations  of  the  complaint. 

On  the  trial  the  plaintiff  stated  that  he  expected  to  prove  a  warranty 
only  ;  that  he  did  not  expect  to  prove  any  false  or  fraudulent  repre- 
sentations, or  that  the  defendant  intended  to  deceive  or  did  knowingly 
or  fraudulently  deceive  the  plaintiff,  and  that  he  should  only  claim  to 
recover  damages  for  a  breach  of  the  contract  of  warranty. 

The  defendant  then  moved  that  the  plaintiff  be  nonsuited,  on  the 
ground  that  the  cause  of  action  stated  in  the  complaint  is  for  fraud  and 
deceit,  and  not  for  breach  of  a  contract  of  warranty.  The  judge  denied 
this  motion  and  the  defendant  excepted.  A  cause  of  action  upon  a 
warranty  was  then  proven,  but  no  evidence  was  given  tending  to  prove 
fraud  or  any  intention  to  deceive.  The  defendant  then  renewed  his 
motion  for  a  nonsuit  upon  the  grounds  before  stated,  which  was  denied, 
and  he  excepted.  Exceptions  were  ordered  to  be  heard  at  first  instance 
at  General  Term. 

Murray  &  Greene,  for  appellant. 

E.  A.  Raymond,  for  respondent.^ 

Hunt,  C. — The  complaint  contains  all  flip  pipmpntg  ^f  a  rntriplflint 
for  a  fraud.  It  must  be  held  to  be  such  unless  the  distinction  between 
the  two  forms  of  action  is  at  an  end.  While  it  contains  all  that  is  nec- 
essary  to  authorize  a  recovery  upon  a  contract,  it  contains  much  more. 
These  additional  allegations  are  so  important  and  are  stated  in  a  man- 
ner so  logical  and  orderly,  that  thej'  determine  the  character  of  the 
action. 

In  addition  to  what  is  necessary  to  sustain  an  action  upon  contract, 
the  complaint  alleges:  i.  That  the  defendant  "fraudulently  repre- 
sented "  that  the  lameness  arose  from  an  injury  to  his  foot,  and  was 
temporary  only.  2.  That  the  plaintiff  relied  upon  the  warranty  not 
only,  but  upon  said  representations,  and  believing  them  to  be  true, 
made  the  purchase  3.  That  at  the  time  of  the  warranty  not  only,  but 
of  the  false  and  fraudulent  representations,  the  horse  was  lame  in  his 
gambrel  joint  and  not  in  his  foot.  4.  That  at  the  time  of  making  the 
false  and  fraudulent  representations,  the  defendant  well  knew  that  the 
lamness  was  not  in  the  hind  foot,  but  was  in  the  gambrel  joint,  which 
had  been  badly  diseased  for  more  than  two  weeks,  which  was  also  well 
known  to  the  defendant.  5.  That  by  means  of  the  premises,  the  defend- 
ant falsely  and  fraudulently  deceived  the  plaintiff  in  the  sale  of  the 
horse,  to  his  damage  of  $500. 

No  allegations  could  have  been  inserted  which  would  have  more 
clearly  constituted  a  case  of  fraud.  That  there  was  a  warranty  as  well 
as  representations,  or  that  both  are  alleged  to  have  existed,  does  not 
alter  the  case.     Fraud  may  be  based  upon  a  warranty  or  upon  represen- 

i  The  arguments  are  omitted. 


ROSS   V.    MATHER.  117 

tations,  or  upon  both  together.  They  may  exist  severally  or  together, 
and  either  or  both  niaj'  be  the  subject  of  fraud,  and  of  an  action  for 
damages  for  fraud. 

If  tlie  ])laintiif  had  been  able  to  establish  a  fraud  in  the  sale,  I  can  not 
doubt  that  he  would  have  been  permitted  to  prove  it  under  this  com- 
plaint. I  do  not  see  upon  what  ground  an  objection  could  have  been 
made  to  it.  So,  if  the  allegations  of  the  complaint  had  been  positively 
stated  and  had  been  verified,  an  order  to  hold  to  bail  must  have  been 
granted  upon  an  application  made  to  the  proper  officer.' 

1  do  not  find  anj'  authorities  in  the  courts  of  this  state  which  sustain 
the  position  that  this  complaint  may  be  considered  as  an  action  for  a 
breach  of  warrant}-.  None  of  the  cases  cited  by  the  respondent's  coun- 
sel are  to  that  effect. 

In  Moore  v.  Noble,  53  Barb.,  425,  the  complaint  alleged  that  the  de- 
fendant falsely  and  fraudulently^  represented  the  horse  to  be  of  a  certain 
value  and  guaranteed  him  to  be  sound  and  free  from  disease.  The  court 
held  it  to  be  an  action  for  a  fraud,  and  that  to  entitle  the  plaintiff  to  re- 
cover he  must  prove  the  seietiter.- 

Walter  z:  Bennett,  16  N.  Y.,  250,  and  Belk7iap  v.  Sealey,  14  N.  Y., 
147,  are  hardly  authorities  on  the  question  of  whether  the  complaint  in 
this  action  is  in  tort  or  assumpsit.  They  are  authorities  on  the  propo- 
sition that  where  the  complaint  is  for  a  tort,  the  plaintiff  establishing 
a  case  in  assumpsit  merely  can  not  recover. 

The  precedent  in  2  Chitty's  Pleadings  (679,  8th  Am.  ed.,  from  6th 
lyond.  ed.)  and  the  case  of  Williamso7i  v.  Allison,  2  East,  446,  are 
chiefly  relied  on  by  the  respondent.  The  precedent  cited  in  Chitty, 
which  is  for  "a  false  warranty  of  a  horse, "  does  not  sustain  the  claim. 
It  omits  the  important  allegation  that  the  seller  well  knew  the  repre- 
sentation to  be  untrue.  The  precedent  also  at  p.  279,  "  on  a  warranty 
of  a  horse  to  be  sound,"  omits  the  same  allegations.  Both  of  these 
precedents  contain  the  allegation  used  in  all  forms  of  assumpsit,  that 
the  defendant  not  regarding  his  promise,  fraudulently  intending  to 
injure  the  plaintiff,  craftily  and  subtly  deceived  the  plaintiff. 

The  case  of  Willia^nson  v.  AllisoJi  is  nearer  to  the  point.  The  court 
hold  that  where  all  the  allegations  are  made  which  are  necessary  to 
sustain  an  action  in  tort,  if  a  warranty  is  also  alleged,  the  tort  may  be 
disregarded  and  a  recovery  had  in  assumpsit.  Dowdny  v.  Mortimer, 
cited  in  the  same  authority,  held  that  the  scietiter  must  be  proved,  and 
in  that  case  no  express  warranty  was  alleged.  In  mj^  opinion,  this  case 
is  not  in  accordance  with  the  authorities  and  practice  of  this  state, 
and  should  not  prevail. 

The  view  of  this  pleading  which  I  have  taken  is  in  accordance  with 
our  improved  system  of  pleading,  abolishing  all  prior  forms  and  requir- 
ing the  party  to  make  a  ' '  statement  of  the  facts  constituting  the  cause 

ICode,  II  179,  iSS. 

2  See  also  Marshall  t .  Gray,  57  Barb.,  414;  McGovern  v.  Payn,  32  Barb.,  S3. 


118  EFFECT   IN    RELATION   TO    SUBSTANTIVE   LAW. 

of  action."!  In  the  present  case,  the  plaintiif  made^  a  statement  of 
facts  which  did'  not  constitute  his  cause  of  action.  The  code  never 
I  intended  that  a  party  who  had  failed  in  the  performance  of  a  contract 
merely,  should  be  sued  for  a  fraud,  or  that  a  party  who  had  committed 
a  fraud  should  be  sued  for  a  breach  of  contract,  unless  the  fraud  was 
intended  to  be  waived.  The  two  causes  of  action  are  entirely  distinct, 
and  there  can  be  no  recovery  as  for  a  breach  of  contract,  where  a  fraud 
is  the  basis  of  the  complaint. ^  Conaughty  v.  Nichols,  42  N.  Y.,  83,  is 
the  only  authority  cited  to  the  contrary,  and  it  does  not  sustain  that 
position. 

The  judgment  should  therefore  be  reversed  and  new  trial  granted, 
costs  to  abide  event. 

LoTT,  Ch.  C.  {dissefiting).  The  question  in  this  case  is  whether  the 
c  j^  plaintiff  could  recover  on  the  proof  of  the  warranty  alleged  in  the 
/2l*J  complaint  and  its  breach,  without  also  proving  guilty  knowledge  by 
^      "the  defendant  of  the  falsity  of  the  representations  made  by  him. 

That  question  was  very  fully  considered  in  Williamson  v.  Allison,  2 
East,  446.  The  plaintiff  in  that  action  brought  twenty-four  bottles  of 
claret,  for  the  purpose  of  being  exported  to  a  foreign  market  for  sale. 
The  declaration  charged  that  the  defendant,  well  knowing  the  wine  to 
be  in  an  unfit  and  improper  state  for  exportation,  and  falsely  and  fraud- 
ulently warranting  the  same  to  be  fit  and  proper,  falsely,  fraudulently, 
and  deceitfully  sold  the  same  to  the  plaintiff,  and  by  means  of  the 
premises,  falsely  and  fraudulently  deceived  him. 

At  the  trial  the  plaintiff  did  not  prove  knowledge  by  the  defendant 
of  the  unfit  condition  of  the  wine,  and  it  was  contended  that  he  could 
not  recover,  inasmuch  as  there  was  no  proof  of  scicjiter,  as  laid  in  the 
declaration.  The  judge,  however,  held  that  the  gist  of  the  action  was 
the  warranty,  and  that  the  scienter  alleged  was  mere  matter  of  aggrava- 
tion, and  need  not  be  proved.  A  verdict  was  rendered  for  the  plaintiff, 
and  a  rule  to  show  cause  why  it  should  not  be  set  aside  was  thereupon 
granted,  and  upon  its  return  and  after  argument,  the  rule  was  dis- 
charged. Lawrence,  J.,  said  with  respect  to  what  averments  are  neces- 
sary to  be  proved,  he  took  the  rule  to  be,  that  if  the  whole  of  the 
averment  may  be  struck  out,  without  destroying  the  plaintiff 's  right  of 
action,  it  was  not  necessary  to  prove  it ;  and  he  referred  to  a  case  before 
Lord  Raymond,  who  held  the  scienter  there  alleged  was  not  necessary  to 
be  proved,  inasmuch  as  there  was  a  warranty,  and  that  the  scienter  was 
only  necessary  to  be  proved  where  the  action  was  in  the  nature  of  an 
action  of  deceit  without  a  warranty. 

Le  Blank,  J.,  said  that  the  insertion  or  omission  of  the  fact  of  the 
defendant's  knowledge,  at  the  time,  that  the  wine  was  unfit  for  sale 
according  to  the  warranty,  makes  no  difference,  and  that  the  allegation 
might,  therefore,  be  struck  out  altogether. 

1  Code,  \  142.  2  See  authorities,  supra. 


ROSS    V.    MATHER.  119 

The  rule  laid  down  and  adopted  in  that  case  is  recognized  by  C/iitfy, 
in  his  work  on  Pleadings.  He  says,  in  speaking  of  an  action  on  the 
case  as  a  proper  remedy  for  a  false  warranty,  and  in  prescribing  the 
requisites  or  qualities  of  a  declaration  in  such  an  action,  that  it  is  not 
necessary  that  a  scienter  should  be  alleged,  and,  if  stated,  need  not  be 
proved,  and  cites  Williamson  v.  Allison,  supra. ^  His  precedent  or  form 
of  a  declaration,  in  an  action  on  the  case  for  a  false  warranty  on  the  sale 
of  a  horse,  has  been  substantially  adopted,  and  followed  by  the  pleader 
in  drawing  the  complaint  in  the  action  under  review. ^ 

It  is  said  by  the  counsel  of  the  appellant  that,  in  that  form,  a  scienter 
is  not  alleged.  It  is  true  that  there  is  no  express  allegation  of  that  fact, 
but  it  is  alleged  therein  that  the  defendant  falsely  and  fraudulently 
warranted  the  said  horse  to  be  sound,  and  quiet  in  harness,  and  it  is 
well  established  that  the  words  "falsely  and  fraudulently, "  when  used 
to  qualify  the  defendant's  atmnus  in  making  the  representations,  are 
equivalent  to  the  formal  statement,  or  constitute  a. sufficient  allegation 
of  a  scienter,  even  in  an  action  of  deceit.^ 

The  principle  deducible  from  the  rule  referred  to  is  that,  if  the  repre- 
sentation relied  on  as  the  basis  of  the  action  constitutes  a  warranty, 
then,  if  the  property  warranted  does  not  answer  the  description,  the 
party  injured  has  a  right  to  recover,  irrespective  of  the  question  of 
scienter.  If,  on  the  other  hand,  it  is  a  false  statement  or  affirmance,  not 
amounting  to  a  warranty,  then  an  averment  and  proof  of  the  knowledge 
of  its  falsity  by  the  party  making  it  are  both  necessary  to  give  a  cause 
of  action. 

The  defendant,  how^ever,  claims  that  whatever  may  have  Ijeen  the 
rule  under  the  old  system  of  pleading,  the  action,  under  the  code  and 
the  present  system,  was  clearly  "  for  damages  for  the  deceit,  and  that 
fraud  was  the  gravamen  of  the  action."  There  is  no  ground  for  this 
claim.  All  that  is  required  by  the  code  is  a  plain  and  concise  statement 
of  the  facts  constituting  a  cause  of  action,  without  unnecessary  repeti. 
tion. 

The  complaint,  in  the  present  case,  alleges  a  warranty,  and  false  and 
fraudulent  representations  of  the  defendant  as  to  the  lameness  of  the 
horse  sold  by  him  and  its  cause,  and  that,  relying  7tpon  said  zcarranty 
and  .representations,  and  believing  them  to  be  true,  plaintiff  purchased 
him  ;  and  every  allegation  of  false  and  fraudulent  representations  is  pre- 
ceded by  an  allegation  of  warranty. 

It  can  not  be  said,  after  the  plaintiff  himself  has  alleged  that  he  re- 
lied, in  making  his  purchase,  ' '  upon  said  warranty  and  representations, 
that  fraud  was  the  gravamen  of  the  action.     That  statement  by  him 
concedes  and  admits  that  the  warranty  influenced  his  action,  at  least  to 
some  extent,  and  no  representations,  except  those  constituting  it,  are 

1  See  3  American,  from  2  I^ondon  edition,  vol.  i,  pp.  139,  376.  marginal  paging. 

2  See  vol.  2  of  same  edition,  pp.  325,  marginal  paging. 

3  See  Bayard  v.  Malcolm,  in  the  Court  for  the  Correction  of  Errors,  2  Johns.,  550,  and 
Thomas  v.  Beebe,  25  N.  Y.,  opinion  of  Selden,  J.,  p.  246,  and  of  Denio,  Ch.  J.,  p.  249,  etc. 


120  EFFECT    IN   RELATION   TO   SUBSTANTIVE    LAW. 

Stated  to  have  been  made.  Indeed,  there  is  nothing  set  forth  in  the 
complaint  to  justify  the  inference  or  presumption  that  the  plaintiff 
would  have  bought  the  horse  on  the  representations  alleged  without  the 
warranty,  and  if  the  statements  that  they  were  fraudulent  or  fraudu- 
lently made,  and  that  the  defendant  knew  they  were  false,  were  entirely 
omitted,  the  other  facts  stated  a  full  and  perfect  cause  of  action  against 
the  defendant,  and  the  omission  to  prove  those  statements  did  not,  in 
any  form  or  manner,  or  to  any  extent,  qualify  his  liability.  Being  un- 
necessary and  immaterial  to  the  cause  of  action,  they  could  have  been 
stricken  out,  on  motion,  as  irrelevant  matters,  and  it  was  properly  held 
on  the  trial  that  there  was  no  necessity  of  proving  them,  and  that  the 
plaintiff  was  entitled  to  a  recovery  without  such  proof. 

This  principle  is  fully  settled  in  Conaughty  v.  Nichols,  42  N.  Y.  83. 

It  may  be  proper,  in  conclusion,  to  refer  to  the  report  of  the  decision 
in  this  case,  in  47  Barb.,  582.  It  is  stated,  in  the  statement  of  the  case 
preceding  the  opinion  of  the  court,  that  the  complaint  in  the  action 
alleged  fraud  and  deceit  in  the  sale  of  a  horse  by  the  defendant  to  the 
plaintiff;  that  the  plaintiff  made  representations  which  he  knew  to  be 
false,  and  that  the  defendant,  by  means  of  the  premises,  falsely  and 
fraudulently  deceived  him  (the  plaintiff)  in  the  sale  of  said  horse  as 
aforesaid  to  the  damage  of  the  plaintiff  of  $500,  for  which  judgment 
was  demanded.  No  reference  -or  allusion  whatever  is  made  in  that 
statement  to  the  allegations  of  ivarrmity  contained  in  the  complaint, 
which,  as  was  stated  in  the  opinion  of  the  court  below  and  according 
to  the  views  above  expressed  by  me,  made  it  a  complaint  for  a  false 
warranty  of  the  horse,  and  not  for  deceit  in  the  sale. 

It  follows,  from  what  I  have  stated,  that  there  is  no  ground  for  the 
reversal  of  the  judgment.     It  must,  consequently,  be  affirmed  with  costs. 

All  concur  for  reversal  except  Lott,  Ch.  C,  dissenting. 

Judgment  reversed. 


J 


c^ 


SUPERVISORS  OF  KEWAUNEE  COUNTY  v.  DECKER. 

Supreme  Court  of  Wisconsin,  June  Term,  1872. 

[30    Wis.  624.] 

x^ 

Action  for  recovery  of  money  alleged  to  belong  to  the  count}-  of 
Kewaunee,  and  to  have  been  converted  by  defendant  Decker  to  his  own 
use,  he  being  the  clerk  of  the  plaintiff  board  of  supervisors.  The  opin- 
ion states  the  case.  Defendant  demurred  to  the  complaint  for  insuffi- 
ciency, the  demurrer  was  overruled,  and  defendant  appeals. 

Felkcr  &  Weishrod,  for  appellant. 

/.  D.  Mark  ham  (with  Gil  let  &  Taylor,  of  counsel),  cofitra. 


SUPERVISORS   OF    KJCWAUNKK    COUNTY   :'.    DECKER.  121 

Dixon,  C.  J. — It  would  certainly  be  a  most  anomalous  and  hitherto 
unknown  condition  of  the  laws  of  pleading,  were  it  established  that 
the  plaintiff  in  a  civil  action  could  file  and  serve  a  complaint,  the  par- 
ticular nature  and  object  of  which  no  one  could  tell,  but  which  might 
and  should  be  held  good  as  a  statement  of  two  or  three  or  more  differ- 
ent and  inconsistent  causes  of  action,  as  one  in  tort,  one  upon  money 
demand  on  contract,  and  one  in  equity,  all  combined  or  fused  and 
moulded  into  one  count  or  declaration,  so  that  the  defendant  must 
await  the  accidents  and  events  of  trial,  and  until  the  plaintiff's  proofs 
are  all  in,  before  being  informed  with  any  certainty  or  definiteness  what 
he  was  called  upon  to  meet.  The  proposition  that  a  complaint,  or  any 
single  count  of  it,  may  be  so  framed  with  a  double,  treble,  or  any  num- 
ber of  aspects,  looking  to  so  many  distinct  and  incongruous  causes  of 
action,  in  order  to  hit  the  exigencies  of  the  plaintiff's  case  or  any  pos- 
sible demands  of  his  proofs  at  the  trial,  we  must  sa}-,  strikes  us  as  some- 
thing exceedingly  novel  in  the  rules  of  pleading.  We  do  not  think  it 
is  the  law,  and,  unless,  the  legislature  compels  us  b}'  some  new  statu- 
tory regulation,  shall  hereafter  be  verj'  slow  to  change  this  conclusion. 
Counsel  for  the  defendant  in  this  action  suppose  the  complaint  herein 
to  be  intended  and  to  be  one  in  irovcr,  charjj'in^  or  gp^t-if  g-  ^'^  r■'\^■^r^f- 
the  defendant  with  the  wrongful  conversion  of  certain  money's  which 

"came  into  his  hands  as  a  public  otfacer,  and  which  b.elaug£d.^tQ_tlLe 
plaintift ;  and,  acting  upon  such  supposition,  the}-  have  demurrc;d  to 

the  complaint  as  not  stating  facts  .sufficient  to  constitute  that  cause  of 
action.  It  would  be  unfair  to  saj-  that  the  learned  counsel  for  the 
plaintiff  equivocate  on  that  point,  nor  is  it  true  that  they  take  issue 
with  the  counsel  for  the  defendant  as  to  the  nature  of  the  complaint 
They  rather  concede  than  otherwise,  that  the  complaint  is  and  was  in-^ 
tended  to  be  one  in  tori  for  the  conversion,  but  they  at  the  same  time  ^ 
insist,  that  if  it  is  not  good  as  a  complaint  of  that  kind,  it  is  sufficient 
as  a  complaint  or  count  in  an  action  for  monej^  had  and  received,  and 
being  sufficient  for  that  purpose,  they  argue  that  the  demurrer  was  I 
properh"  overruled,  and  the  order  of  the  court  below  should  be  affirmed 
on  that  ground.  In  other  words,  their  position  is  that  it  is  a  question 
now  open  to  speculation  and  inquir}'  on  this  demurrer,  whether,  upon 
all  or  any  of  the  facts  stated  in  the  complaint,  taken  collective!}-  or  sep- 
arately, or  even  by  severing  the  allegations  themselves,  so  as  to  elimi- 
nate or  discard  certa-in  portions  of  them  as  surplusage,  a  cause  of  action 
of  any  kind  is  or  can  be  made  out,  and,  if  it  be  found  that  it  can,  then 
the  demurrer  should  be  overruled.  To  show  that  the  complaint  ma}-  be 
upheld  as  one  for  money  had  and  received  for  the  use  of  the  plaintiff, 
and  the  action  considered  as  one  of  that  kind,  counsel  gravely  contend 
that  the  averments  that  the  defendant  made  fraudulent  representations, 
and  acted  falsely,  fratidulently,  and  wrongfully,  in  claiming  and  with- 
holding the  moneys,  and  that  he  converted  the  same,  etc.,  may  be  dis- 
regarded and  rejected  as  surplusage. 


^ 


122  EFFECT   IN    RELATION   TO   SUBSTANTIVE   LAW. 

In  support  of  this  petition,  counsel  cited  several  New  York  decisions, 
and  some  in  this  court,  where,  after  trial  a7id  judgment,  or  after  issue 
has  beeti  taketi  upon  the  merits,  or  after  the  trial  has  cotnmenced  and  the 
plaintiff's  case  is  closed,  it  has  been  held  that  such  allegations  may  be 
disregarded.  The  decisions  were  in  actions  like  the  present  and  others 
involving  a  somewhat  similar  question  under  the  circumstances  above 
stated,  and  were  made  in  favor  of  a  good  cause  of  action,  proved  or  pro- 
posed to  be,  and  which  by  a  fair  and  reaRonaKV  intprprptafiMUjiif  the 
pleadings  could  be  said  to  be  within  the  SC"P^  "f  them  or  to  be  fairly 
mapped  out  and  delineated  by  the  averments,  so  that  the  defendant  was 
apprised  of  the  demand  made  against  him,  and  of  the  farts  relied  npnti 
to  establish  it.  TIr  ^ixal  liberalitj^  of  the  code,  and  the  broad  powers 
of  amendment  conferred  and  enforced  upon  the  courts  under  such  cir- 
cumstances, are  well  known.  Tt__is  derlare^]  that  no  variance  between 
the  allegation  in  a  pleading  and  the  proof  shall  be  deemed  material, 
unless  it  shall  actually  mislead  the  adverse  party  to  hisjrejudice  in 
mamtaming  bis  action  or  defence  upon  the  merits,  and  that  when  the 
variance  is  not  material,  the  court  may  direct  the  fact  to  be  found  in 
accordance  with  evidence,  or  may^rder  an  immediate  ainendment  with- 
..QUt  costs^  Most  liberal  provision  is  also  made  for  amendments  in  other 
respects,  by  adding  to  or  taking  from  the  pleadings  before  or  after  judg- 
ment in  furtherance  of  justice.  Where  an  answer  is  put  in,  it  is  pro- 
vided that  the  court  may  grant  the  plaintiff  any  relief  consistent  with 
the  case  made  by  the  complaint  and  embraced  within  the  issue.  And 
it  is  furthermore  declared  that  the  court  shall,  in  every  stage  of  an  ac- 
tion, disregard  any  error  or  defect  in  the  pleadings  or  proceedings, 
which  shall  not  affect  the  substantial  rights  of  the  adverse  party,  and 
that  no  judgment  shall  be  reversed  or  affected  by  reason  of  such  error 
or  defect.  These  provisions  for  the  most  part,  if  not  entirely,  relate  to 
the  proceedings  in  an  action  after  issue  joined  on  the  merits,  upon  or 
after  the  trial,  or  after  judgment  on  the  merits,  when  the  facts  are  made 
to  appear  and  the  substantial  rights  of  the  parties  are  shown.  They 
are  enacted  in  amplification  and  enlargement  of  the  rules  of  the  com- 
mon law  on  the  same  subjects,  by  which  it  is  well  understood  there 
were  many  defects,  imperfections  and  omissions,  constituting  fatal  ob- 
jections on  demurrer,  which  were  cured  after  issue  joined,  and  a  trial 
or  verdict  and  jvidgment  on  the  merits.  The  cases  cited  by  counsel  are 
all  of  them  manifestly  such  as  fall  within  these  provisions  and  rules, 
and  none  of  them  touch  or  have  any  bearing  upon  the  question  or  case 
here  presented.'  No  case  arising  upon  demurrer  to  the  complaint  is 
cited,  and  it  is  believed  none  can  be,  holding  any  such  doctrine  as  that 
contended  for.  Most  of  the  cases  were  where  no  objection  was  taken 
until  after  issue  joined  and  trial  had  and  judgment  rendered  on  the 
merits,  and  then  the  objection  was  brought  forward  as  a  ground  of 
reversal,  and  generall}'  in  the  appellate  court,  that  the  plaintiff  had 

1  Cf.  Giffert  v.  West  (1873),  33  Wis.  617,  622. Ed. 


SUPERVISORS   OF   KEWAUNEE   COUNTY    V.    DECKER.  123 

declared  in  tort  and  recovered  on  contract,  or  vice  vet'sa,  or  had  sued  in 
equity  and  recovered  judgment  at  law,  or  that  equitable  relief  had  been 
granted  in  an  action  commenced  and  tried  as  one  on  the  law  side  of  the 
court.  In  all  the  cases  the  objection  had  been  waived  b}-  failure  of  the 
part}'  to  take  it  properh-  and  in  season,  and  under  the  liberal  powers 
of  amendment  and  curative  provisions  of  the  code,  it  was  held  that  the 
proceedings  or  judgments,  just  in  themselves,  should  not  be  disturbed 
upon  points  of  mere  form.  Further  or  more  particular  comment  upon 
the  cases  is  deemed  unnecessary.* 

It  thus  appears  that  the  authorities  relied  upon  do  not  sanction  the 
position,  that  a  complaint  in  the  first  instance  and  where  challenged 
by  demurrer,"  may  be  uncertain  and  ambulatory,  purposelv  so  made. 
now  presenting  one  face  to  the  court  and  now  another,  at  the  mere  will 
of  the  pleader,  so  that  it  may  be  regarded  as  one  in  tort,  or  one  on  con- 
tract, or  in  equity,  as  he  is  pleased  to  name~it  and  the  necessities  of 
argument  require,  and  if  discovered  to  be  good  in  any  of  the  turns  or 
pnases  which  it  may  thus  be  made  to  assume,  that  it  must  be  upheld 
m  tnat  aspect,  as  a  proper  and  sufficient  pleading  by  the  court.  As 
already  observed,  the  opinion  ot  the  court  is  quite  the  contrary.     We  A 

have  often  held  that  the  inherent  and  essential  differences  and  peculiar  11  Rjl 
properties  of  actions  have  not  been  destroyed,  and  from  their  very  nature '» 
can  not  be.^  These  distinctions  continuing,  they  must  be  regarded  by 
the  courts  now  as  formerlj- ;  and  now  no  more  than  then,  except  unde: 
the  peculiar  circumstances  above  noted,  can  any  one  complaint  oi 
count,  be  made  to  subserv^e  the  purposes  of  two  or  more  distinct  and 
dissimilar  causes  of  action  at  the  option  of  the  party  presenting  it.  It 
cannot  be  "  fish,  flesh,  or  fowl  "  according  to  the  appetite  of  the  attor- 
ney preparing  the  dish  set  before  the  court.  If  counsel  disagree  as  to 
the  nature  of  the  action  or  purpose  of  the  pleading,  it  is  the  province  of 
the  court  to  settle  the  dispute.  It  is  a  question  when  properlj-  raised 
which  cannot  be  left  in  doubt,  and  the  court  must  determine  with  pre- 
cision and  certainty  upon  inspection  of  the  pleadings  to  what  class  of 
actions  it  belongs  or  was  intended,  whether  of  tort,  upon  contract,  or 
in  equity,  and,  if  necessary  or  material,  even  the  exact  kind  of  it  within 
the  class  must  also  be  determined.* 

1  Citing,  however — Barlow  v.  Scott,  24  N.  Y.  40;  Byxoie  v.  Wood,  24  N.  Y.  607;  Au.stin  v. 
Rawdon,  44  N.  Y.  63;  Greason  v.  Keteltas,  17  N.  V.  491;  Emery  7^.  Pease,  20  N.  Y.  62  ; 
Conaughty  v.  Nichols,  42  N.  Y.  83  ;  Wright  v.  Hooker,  10  N.  Y.  51  ;  Walter  v.  Bennett,  16  N. 
Y.  250 ;  Stroebe  v.  Fehl,  22  Wis.  347  ;  Hopkins  v.  Gilnian,  22  Wis.  481  ;  Tenney  v.  The  State 
Bank,  20  Wis.  152  ;  I,eonard  v.  Rogan,  10  Wis.  540  ;  Satbuels  v.  Blanchard,  25  Wis.  329  ;  Vilas 
V.  Mason,  25  Wis.  310,  328. 

2  Of.  Johns  V.  Northwestern  Ass'n.  (1894),  87  Wis.  iij,  114:  "  If  this  question  of  the  suffi- 
ciency of  the  complaint  arose  on  demurrer^  the  court  would  determine  what  cause  of  action 
the  pleader  intended  to  set  out,  and  whether  it  was  sufficiently  set  out.  Supervisors  of 
Kewaunee  Co.  v.  Decker,  30  Wis.  624.  On  a  motion  to  :naKe  the  complaint  definite  and  cer- 
tain, the  court  will  require  the  plaintiff  to  make  'the  precise  nature  of  the  charge  ' — the 
cause  of  action — 'apparent   upon   the  face  of  the  complaint.' "     Per  Newman,  J. 

For  the  function  of  the  motion  as  distinguished  from  the  demurrer,  see  infra. 

3  Howland  ?■.  Needham,  10  Wis.  495,  498. 

4  See  Clark  ;■.  L,angworthy,  12  Wis.  441  ;  and  Gillett  v.  Treganza,  13  Wis.  472. 


124  EFFECT   IN   RELATION   TO   SUBSTANTIVE   LAW 

This  is  not  only  in  harmony  with  the  decisions  above  referred  to,  but 
with  all  the  decisions  of  this  court  bearing  upon  the  question,  and  we 
know  of  none  elsewhere  in  conflict.  It  is  in  harmony  with  those  deci- 
sions which  have  been  made,  that  an  application  to  amend  should  be 
denied,  which  proposes  to  entirely  change  the  cause  of  action  sued 
upon,  or  to  introduce  a  new  one  of  a  different  kind.^  It  is  in  harmony 
with  the  decision  in  Schuenert  v.  Kaehler,  25  Wis.  523,  where  upon 
demurrer  to  the  counter-claim  of  the  defendant,  the  court  inspected  the 
complaint  and  determined  the  nature  of  it,  and  said  that  "  the  subject 
of  the  action  is  the  tort  or  wrong  which  was  committed  in  the  conver- 
sion of  the  money.  That  is  the  foundation,  and  sole  foundation  of  the 
plaintiff"  's  claim  in  this  form  of  action  ;  for  unless  the  money  was 
unlawfully  converted,  the  action  cannot  be  maintained.  "  Counsel  crit- 
icise this  language  and  say  that  it  is  inconsistent  with  some  of  the 
cases  first  above  cited.  We  answer  clearly  not,  when  correctly  under- 
stood and  applied,  that  is,  in  case  proper  objection  was  taken  to  a 
recovery  upon  any  other  ground,  or  upon  any  proofs  short  of  those 
establishing  the  cause  of  action  stated  in  the  complaint.  Counsel  say, 
however,  and  we  think  with  entire  correctness,  that  after  demurrer  sus- 
tained to  the  counter-claim,  as  was  there  done,  on  the  ground  that  the 
complaint  was  in  tort,  there  could  be  no  recovery  in  the  action  except 
for  a  tort.  The  greatest  injustice  might  result  to  the  defendant  if  this 
were  not  so,  or,  if  having  been  deprived  of  his  counter-claim  on  the 
ground  that  the  action  was  in  tort,  the  plaintiff"  should  afterwards  be 
permitted  to  recover  against  him  as  upon  contract. 

And  the  same  view  is  also  in  keeping  with  the  decision  of  this  court 
recently  made  in  Anderson  v.  Case,  28  Wis.,  505,  where  in  an  action  ex 
delicto  for  the  seizure  and  conversion  of  certain  personal  propertj-,  the 
plaintiff's  claimed  that  the  judgment  appealed  from  should  be  affirmed 
by  this  court  as  one  for  money  had  and  received,  being  the  proceeds  of 
the  sale  of  the  property  by  the  defendants  which  the  evidence  on  the 
trial  showed  had  been  made  and  the  price  received  by  them  in  money. 
But  it  was  held  against  the  plaintiflFs,  and  the  judgment  was  reversed 
because  of  the  substantial  difference  between  the  action  for  the  wrong- 
ful conversion  and  the  action  for  money  had  and  received,  and  because, 
in  the  former,  execution  goes  against  the  body  of  the  debtor  as  well  as 
his  propert}',  while  in  the  latter  it  goes  only  against  his  propert}-.  That 
decision  is  authority  for  the  position  that  to  justify  the  rendition  of 
judgment  upon  proof  of  liabilit}-  ex  contractu,  where  the  form  of  action 
is  ex  delicto,  the  proceedings  must  be  changed  by  amendment  so  as  to 
conform  to  the  facts  proved  and  the  nature  of  the  cause  of  action  estab- 
lished, or  otherwise  that  the  judgment  itself  must  distincth'  specify 
land  show  that  the  recovery  was  upon  contract  and  not  in  tort. 

1  Newton  v.  Allis,  12  Wis.  378;  .Sweet  v.  Mitchell.  13  Wis.  641,  664,  and  19  Wis.  52S  ;  I<ar- 
kin  V.  Noonan,  19  Wis.  82  ;  Stevens  v.  Boooks,  23  Wis.  196. 


SUPERVISORS   OF   KEWAUNEE   COUNTY   V.    DECKER.  125 

And  directly  also  in  support  of  the  same  view,  that  the  court  must 
ascertain  and  decide  definitely  what  the  character  of  the  pleading  is, 
and  the  nature  of  the  cause  of  action  stated  in  it,  or  intended  to  be,  is 
the  late  case  of  Lee  7>.  Simps07i,  29  Wis.,  333,  which  likewise  aro.se  on 
demurrer  to  the  complaint.  And  see  also  Ragan  v.  Si?npsoH,  27  Wis., 
355  ;  where  it  was  held  in  an  action  for  unlawful  detainer,  taken  by 
appeal  to  the  circuit  court,  that  the  defence  set  up  and  proved  that  one 
of  the  defendants  was  a  mortgagor  in  possession,  with  right  to  redeem, 
could  not  be  treated  at  the  instance  of  the  plaintiffs  as  an  action  by  the 
defendants,  or  one  of  them,  to  redeem  from  the  mortgage,  but  that  the 
defendants  were  entitled  to  a  judgment  of  dismissal. 

But  the  language  in  our  own  reports  which  most  nearly  indicates  the 
true  rule  of  law  and  practice  in  cases  of  this  nature,  is  that  Mr.  Justice 
Paine  in  Samuels  v.  Blanchard,^  where,  speaking  of  the  complaint  in 
that  case,  he  says  :  "If  the  question  had  been  presented  properly  at 
the  preliminary  stage  of  the  case,  the  character  of  the  summons,  taken 
in  connection  with  the  form  of  the  allegations  of  the  complaint,  might 
have  required  it  to  be  decided  that  the  action  must  be  in  strictness  re- 
garded as  upon  contract."  And  again,  he  says:  "The  facts  that,  if 
the  action  was  considered  as  one  upon  contract,  the  objection  appeared 
on  the  face  of  the  complaint  and  might  have  been  taken  advantage  of 
by  demurrer,  and  that  no  demurrer  was  interposed,  and  that  both  par- 
ties introduced  fully  their  evidence,  as  to  the  whole  controversy,  in  the 
absence  of  anything  showing  that  this  distinct  question  was  raised  at 
all  in  the  court  below,  we  think  sufiiciently  establish  the  claim  of  the 
respondent's  counsel,  that  it  was  tried  there  as  an  action  of  tort,  with- 
out objection,  and  must  be  so  treated  here." 

The  foregoing  language  indicates,  not  only  that  the  sufiicienc}'  of 
the  pleading  must  be  determined  on  demurrer  to  it,  but  also  the  true 
nature  and  object  of  it,  or  what  the  particular  kind  or  cause  of  action 
stated  is,  or  is  designed  to  be,  and  that  for  this  purpose  the  character 
of  the  summons  may  be  taken  into  consideration  in  connection  with 
the  form  of  the  allegations  of  the  complaint.  And  this  we  take  to  be 
the  true  rule,  that  the  court  must  in  the  first  instance  decide  with  cer- 
tainty what  the  specific  cause  of  action  counted  and  relied  upon  is,  and, 
having  decided  that,  it  must  next  determine  whether  the  complaint 
contains  a  sufficient  statement  of  such  cause,  and  if  it  does  not,  the  de- 
murrer must  be  sustained.  In  the  present  case  the  summons  is  for  re- 
lief, and  not  one  for  a  money  demand  arising  on  contract.  The  sum- 
mons is  appropriate,  therefore,  only  to  the  action  of  tort  or  for  the 
wrongful  conversion  of  the  moneys.  It  corroborates  the  intention  of 
the  pleader  as  shown  by  the  allegations  of  the  complaint,  to  sue  in  that 
form  of  action,  and  from  both,  we  think  it  clearly  enough  appears,  that 
the  action  is  and  was  designed  to  be  in  tort  and  not  upon  contract ;  and 
by  this  standard  or  by  the  rules  of  pleading  which  should  govern  in  an 

1  25  wis.  329. 


126  .  EFFECT   IN   RELATION   TO   SUBSTANTIVE   LAW. 

action  for  the  wrongful  conversion  of  the  moneys,  must  the  sufficienc}- 
of  the  averments  be  tested.^ 

If  instead  of  this  action  in  tort,  the  defendant  had  been  sued  upon  his 
official  bond  or  bonds  for  not  accounting  for  and  pa^-ing  over  the  same 
moneys,  and  breaches  had  been  assigned  in  the  same  words  as  in  this 
complaint  of  request  and  refusal,  or  demand  and  refusal,  such  assign- 
ments would  have  been  bad  on  demurrer  as  showing  no  violation  of  the 
conditions  of  the  bonds.-  It  would  be  something  verj'  remarkable  in 
the  historj'  of  pleading,  should  it  be  held  that  the  same  facts  which 
would  7iot  constitute  a  breach  of  the  official  bond  of  a  public  officer  in 
not  accounting  for  and  paying  over  public  money  in  his  hands,  would 
constitute  a  tortious  and  wrongful  conversion  of  the  same  moneys  for 
which  an  action  ex  delicto  might  be  maintained  against  him.  We  think 
no  statement  of  facts  in  a  case  like  this  not  sufficient  to  show  a  breach 
of  the  official  bond  growing  out  of  the  same  transactions,  will  be  suffi- 
cient to  show  a  conversion  of  the  moneys. 

By  the  Court.  Order  reversed  and  cause  remanded. 


SUPERVISORS  OF  KEWAUNEE  COUNTY  v.  DECKER. 

fK,  Supreme  Court  of  Wisconsin,  January  Term,  1S74. 

[34   Wis.  378.] 

Appeal  from  the  Circuit  Court  for  Kewaunee  County. 
This  ca.se  has  been  twice  before  this  court  on  appeal,  and  is  reported 
in  28  Wis.,  p.  669,  and  30  Wis.,  p.  624 ;  and  a  statement  of  the  action 
as  originally  brought  appears  in  the  volume  first  named. 

Pursuant  to  the  order  made  in  this  court  on  the  last  appeal '  the  cir- 
cuit court  of  Kewaunee  county  made  an  order  sustaining  the  demurrer 
to  the  complaint,  and  granted  leave  to  the  plaintiff  to  amend  his  com- 
y^  plaint.     Plaintiff  then  served  an  amended  complaint,  substantially  the 

'^v  I  same  as  the  original,  except  that  the  words  "  and  converted  the  same  to 
.^^y  I  his  own  7fse,"  are  omitted.  The  defendant's  attorney's  at  once  returned 
/  '  .  the  amended  complaint,  on  the  ground  that  the  summons  was  one  for 
^  ^ii*^  relief ;  that  the  complaint  theretofore  served  was  in  conformity  with 
iP^.  (J,  such  summons,  for  an  action  in  tort ;  and  that  the  amended  complaint 
-'v^i  proposed  to  change  the  causes  of  action  ex  delicto  into  several  causes  of 
^ ,v^  V  action  ex  contractu.  Afterwards  the  defendant  moved  to  strike  from 
i«i  ^3"  the  files  of  the  court  the  amended  complaint,  on  the  same  grounds  ;  and 
V*  appealed  from  an  order  denying  the  motion. 

1  Part  of  the  opinion,  considering  particular  allegations  in  the  complaint,  is  omitted. 

2  The  Board  of  Supervisors  of  Iowa  County  <■.  Vivian,  Treasurer,  31  Wis.  217  ;  Super^ns- 
ors,  etc.,  V.  Kirby,  25  Wis.  498;  Wolf  v.  Stoddard,  25  Wis.  503. 

3  See  30  Wis.,  624. 


SUPERVISORS   OF    KEWAUNEE    COUNTY   V.    DECKER.  127 

Felker  &  Weisbrod,  for  appellant. 

/.  D.  Markham  (with  Gillei&  Taylor,  of  counsel),  for  respondent.' 
Cole,  J. — The  original  complaint,  according  to  the  decision  of  this 
covirt,  stated  a  cause  of  action  for  the  wrongful  conversion  of  nione^'. 
although  it  was  held  that  the  pleading  was  defective  for  not  setting  out 
the  facts  showing  in  what  the  fraud  or  wrong  of  the  defendant  consisted. 2 
The  amended  complaint,  it  is  conceded,  states  a  cause  of  action  on  con^__        A 
tract  for  money  had  and  received.     And  th^^  sole  question_pie§entedJ>s,     1     y>^ 
whether  a  part3%  under  the  form  of  an  amendment,  can  change  the  \&xy  fr^    b 

gist  and  nature  of  the  action  from  one  cjv  delicto  to  one  ex  contractu  ?_ 

The  counsel  for  the  plaintiff  insists  that  the  true  rule  of  law  is,  that  %  t.^ 

there  is  no  restriction  upon  the  power  of  the  court  to  allow  amendments  1  (3>ir 
before  trial,  even  though  the  effect  of  the  amendment  be  to  change  the  / 
whole  cause  of  action  or  grounds  of  defence.  And  he  refers  to  a  num- 
ber of  decisions  in  the  state  of  New  York,  which  he  claims  sustain  this 
position.^  We  shall  not  go  into  any  examination  of  those  rases  to  de- 
termine whether  they  sustain  to  the  full  extent  the  position  to  which 
they  are  cited,  or  not.  It  is  sufficient  to  say  that  the  rule  has  been 
practically  settled  the_other  waxJiL JJlis._slate  in  a  great  number  of 
cases,  and  we  have  no  disposition  to  throw  any  doubt  upon  the  correct- 
ness of  those  decisions  by  treating  the  question  as  an  open  one.  The 
cases  in  this  court  will  be  found  in  the  note  of  the  chief  justice  to  Bray- 
ton  V.  Jones,  5  Wis.,  117,  Appendix,  627,  where  they  are  fully  com- 
mented on  and  explained.  It  is  there  shown  that  an  amendment  before 
trial,  which  attempts  to  change  the  nature  of  the  action  from  one  in 
tort  to  one  in  contract,  is  properl}^  not  an  amendment,  but  a  substitu- 
tion of  a  cause  of  action  different  in  nature  and  substance  from  that 
originally  stated.  The  power  of  amendment  does  not  go  to  that  extent, 
and  therefore  the  amended  complaint  in  the  present  case  was  unauthor-. 
ized.  When  evidence  is  admitted  on  the  trial  without  objection,  great 
liberality  of  amendment  IS  exercised  by  the  court  in  order  to  conform 
the  pleadings  to  the  tacts  proven,  and  give  the  plaintiff  the  relief  lie 
may  seem  entitled  to."^  Butthis  stands  upon  different  grounds,  as  will 
be  seen  in  those  cases. _  iFis  true,  the  amendment  was  merely  striking 


out  only  a  few  words  of  the  original  complaint  ;  but  it  so  happens  that 
these  words  give  character  to  the  action,  and  show  it  to  be  one  in  tort. 
And  we  are  full)'  of  the  opinion — to  use  an  illustration  put  by  the  coun- 
sel for  the  defendant — that  the  code  never  intended  to  allow  a  party  to 
file  a  complaint  for  the  conversion  of  a  promissory  note  ;  then  by  amend- 

1  The  arguments  are  omitted. 

2  30  Wis.  624. 

3  The  decisions  thus  cited  were,  apparently.  Troy  v.  Boston  R.  R.  Co.  (1855),  11  How  Pr. 
168,  170  ;  Bacon  v.  Comstock  (1855),  11  How.  Pr.  197  ;  Deguerre  v.  Orser  (1856),  3  Abb.  Pr.  86; 
Harrington  v.  Slade  (1856).  22  Barb.  161,  164;  Chapman  v.  Webb  (1852).  i  Cole  Rep.,  N.  S. 
388  ;  Andrews  v.  Bond  (1853).  16  Barb.  633  ;  Rawson  z'.  Wetmore  (1862).  39  Barb.  104  ;  Bigelow 
V.  Dunn  (1868),  53  Barb.  570;  Beardsley  v.  Stover  (1852),  7  How  Pr.  294;  Grayi^  Brown  (1S57), 
15  How.  Pr.  555. 

•4  Citing  22  Wis.,  347  476  ;  26  id.  540. 


118  EFFECT    IN    RELATION   TO    SUBSTANTIVE   LAW. 

ment  change  the  complaint  into  one  for  the  recovery  of  real  estate  ;  and 
that  again  into  a  bill  in  equity  to  enforce  the  specific  performance  of  a 
contract,  or  one  to  redeem  a  mortgage,  and  so  on.  This  is  very  like  a 
rednctioad  absurduvi ;  but  to  that  length  the  position  of  plaintiff's 
counsel  logically  leads.  But  this  question  is  so  thoroughly  treated  in 
the  note  above  alluded  to,  that  any  further  discussion  of  it  seems  quite 
unnecessary. 

That  the  order  refusing  to  strike  the  amended  complaint  from  the 
files  is  appealable,  was  not  seriously  questioned  on  the  argument. 

Bv  the  Court. — The  order  appealed  from  is  reversed,  and  the  cause  is 
remanded  for  further  proceedings  according  to  law. 


STERNBERGER  :■.   McGOVERN. 

Court  of  Appeals  of  New  York,  February,  1874. 

[56  N.   Y.  12.'] 

Plaintiffs  and  defendant  executed  a  written  instrument  by  which  the 
former  agreed  to  sell  defendant  certain  land  on  Thompson-street,  New 
York  city,  for  $125,000,  payable  as  follows  :  $20,000  by  defendant's 
assuming  two  mortgages  to  that  amount  on  the  premises  ;  $64,500  by  a 
deed  from  defendant  and  his  wife  to  a  piece  of  land  at  Mott  Haven,  and 
the  balance  by  defendant's  bond  secured  by  mortgage  on  the  Thomp- 
son-street property.  On  his  part,  the  defendant,  in  the  same  instru- 
ment, agreed  to  sell  plaintiffs  the  Mott  Haven  property  for  $82,500, 
payable  as  follows:  $18,000  by  plaintiff's  assumption  of  a  mortgage 
thereon,  for  that  amount,  and  the  balance  by  the  deed  to  the  Thomp- 
son-street property.  The  instrument  specified  when  and  where  the 
deeds  were  "  to  be  exchanged,"  and  prescribed  their  form  and  manner 
of  execution.  On  the  day  and  at  the  place  designated,  plaintiffs  had 
ready  for  delivery  to  defendant  a  deed  duly  executed,  and  tendered  per- 
formance of  the  agreement  on  their  part.  The  defendant  did  not  appear 
at  the  time  and  place  agreed  upon,  and  wholly  failed  to  perform  his 
part  of  the  agreement,  for  the  reason  that  his  wife  refused  to  join  in  a 
conveyance  of  the  Mott  Haven  property,  or  to  release  her  inchoate 
right  of  dower  therein,  although  he  in  good  faith  endeavored  to  induce 
her  to  do  so.  This  fact  was  known  to  plaintiffs  before  their  action  was 
begun. 

The  complaint  treated  the  agreement  as  an  agreement  by  the  defend- 
ant to  purchase  the  Thompson-street  property  for  $125,000,  and  plaintiffs' 
tender  as  passing  the  title  to  defendant.  The  prayer  was  that  the 
property  be  sold  and  its  net  proceeds  be  paid  to  plaintiffs  upon  the 
amount  due   for  the  purchase  money,   and  that  they  have  judgment 

1  S.  C.  Abb.  Pr.,  N.'S.  257.     See  also  report  of  case  in  General  Term,  4  Daly,  456. 


STERNBERGER   2'.    m'GOVERN.  129 

against  the  defendant  for  $105,000  (the  amount  of  the  purchase  money- 
less the  mortgages  on  the  property),  with  interest,  or  for  such  other 
relief,  &c. 

The  Special  Term  held  that  the  plaintiffs  were  entitled  to  a  specific 
performance  ;  tliat  the  defendant  should  accept  the  deed  tendered,  and 
pay  the  consideration  ;  and  that  plaintiffs  had  a  lien  on  the  premises  for 
the  payment  thereof. 

On  appeal,  this  judgment  was  reversed  b}'  the  General  Term,  which 
held  that  the  argreement  was  not  for  a  sale  of  tlie  premises  but  for  an 
exchange;  that  as  the  plaintiffs  had  not  parted  with  possession,  they 
could  not  maintain  an  action  to  enforce  a  vendor's  lien  for  the  price  ; 
that,  as  the  defendant's  inability  to  perform  specifically  was  known  by 
plaintiffs  before  action  brought,  there  was  no  case  presented  for  the 
interposition  of  equity  ;  and  that  the  complaint  should  have  been  dis- 
missed and  the  plaintiffs  left  to  bring  an  action  at  law  for  damages. 
From  a  judgment  entered  on  this  decision  an  appeal  was  taken  to  the 
court  of  appeals. 

Everett  P.   Wheeler,  for  the  appellants. 

T.  C.   T.  Buckley,  for  the  respondent.' 

Grover,  J. — The  different  conclusions  arrived  at  by  the  Special  and 
General  Terms  arose  from  the  different  construction  of  the  contract  of 
the  parties  which  was  respectively  adopted.  The  Special  Term  held 
that  the  contract  of  the  plaintiffs  to  sell  and  convey  to  the  defendant  the 
Thompson-street  property  for  $125,000,  was  an  independent  contract 
not  affected  by  that  part  relating  to  the  Mott  Haven  property  otherwise 
than  by  giving  the  defendant  the  right  of  paying  a  part  of  the  $125,000 
by  conveying  the  same  to  the  two  plaintiffs  at  the  price  specified.  If 
this  is  the  true  construction,  the  judgment  of  the  Special  Term  to  the 
effect  that  the  plaintiffs  were  entitled  to  a  specific  performance  as  to  the 
Thompson-street  property,  irrespective  of  the  ability  of  the  defendant 
to  perform  that  part  of  the  contract  relating  to  the  Mott  Haven  prop- 
erty, was  correct ;  and  the  only  remaining  question  would  be  whether 
the  mode  of  enforcing  performance  of  this  contract  was  proper  under 
the  facts  of  the  case.  The  General  Term  construed  the  contract  as  en- 
tire, in  substance — one  for  the  exchange  of  the  one  property  for  the 
other,  and  the  giving  the  bond  and  mortgage  by  the  defendant  to  the 
plaintiffs  upon  the  Thompson-street  property,  as  the  mode  bj^  which 
the  estimated  excess  of  the  value  of  that  over  that  of  the  Mott  Haven 
property  was  to  be  adjusted.  If  this  is  the  true  construction  it  is  ob- 
vious that  a  specific  performance  of  the  contract  as  to  the  Thompson- 
street  property  could  not  be  enforced  against  the  defendant,  while  he 
was  unable  to  perform  as  to  the  Mott  Haven  property.  In  other  w^ords, 
the  defendant  having,  by  this  construction,  agreed  to  exchange  the 
Mott  Haven  property  for  the  Thompson-street  propertj',  and  to  give  the 
plaintiff  a  mortgage  upon   the  latter  for  its  estimated   excess  in  value 

1  The  arguments  are  omitted. 


130  EFFECT    IN   RELATION   TO   SUBSTANTIVE    LAW. 

over  that  of  the  former, — and  being  unable  to  give  a  good  title  to  the 
Mott  Haven  property,  or  such  title  as  the  plaintiffs  were  willing  to  ac- 
cept,— could  not  be  compelled  to  take  title  to  the  Thompson-street  prop- 
erty, and  pay  the  sum  in  cash  therefor  which  had  been  inserted  in  the 
contract  as  its  price,  but  which  was  inserted  as  a  mode  of  arriving  at 
the  difference  in  value  of  the  respective  properties. 

I  think  the  construction  adopted  by  the  General  Term  was  the  one 
that  was  intended  by  the  parties :  that  the  contract  was  one  for  an 
exchange  ; — not  one  binding  the  defendant  to  purchase  the  Thompson- 
street  property,  giving  him  an  option  to  pay  a  large  portion  of  the 
purchase  money  by  conveying  the  Mott  Haven  property  as  provided  by 
the  contract,  or  of  paying  that  portion  in  money ;  and  binding  the 
plaintiffs  to  purchase  the  Mott  Haven  property,  giving  them  an  option 
of  paying  therefor,  by  converting  the  Thompson-street  property,  or  in 
cash : — in  other  words,  not  a  contract  binding  each  to  purchase  the 
property  of  the  other,  at  the  price  named  in  the  contract,  but  binding 
neither  to  sell  unless  he  chose.  The  language  of  the  contract  shows 
that  this  was  not  the  intention  of  the  parties.  By  that,  each  of  the 
parties  expressly  agree  to  sell  and  convey  their  respective  property  as 
specified  in  the  contract.  It  is  much  more  explicit  in  this  respect  than 
in  the  agreement  to  purchase,  that  being  left  to  inference  from  the  gen- 
eral language  of  the  contract.  To  construe  the  contract  as  requiring 
each  to  purchase  at  the  option  of  the  other,  but  requiring  neither  to 
convey  unless  he  chose  to  do  so,  would  wholly  defeat  the  intention  of 
the  parties,  and  yet  this  is  the  result  of  the  construction  adopted  by  the 
Special  Term.  By  that,  the  defendant  was  held  bound  to  take  the 
Thompson-street  property,  and  in  case  of  failure  to  convey,  as  specified, 
the  Mott  Haven  property,  to  pay  the  sum  specified  as  the  value  of  the 
former  in  cash.  Under  this  construction,  the  plaintiffs,  if  unable  to 
give  title  to  the  Thompson-street  property,  might  have  been  compelled 
to  take  the  Mott  Haven  and  pay  cash  therefor.  As  above  remarked, 
this  would  entirely  defeat  the  intention  of  the  parties,  as  appears  from 
the  language  of  the  entire  contract.  That  shows  that  the  object  was  to 
exchange  the  one  property  for  the  other,  the  defendant  paying  the  esti- 
mated excess  in  the  value  of  the  plaintiffs'  property  to  them.  This 
being  so,  the  contract  was  entire,  and  a  specific  performance  of  a  part 
only  cannot  be  awarded. ^ 

My  conclusion  therefore  is  that  upon  the  facts  found  by  the  Special 
Term,  the  plaintiff  was  not  entitled  to  the  specific  performance  of  the 
contract  or  any  part  of  it.  The  plaintiff  must  resort  to  his  legal  remedy 
for  the  damages,  if  any,  that  he  has  sustained  from  the  defendant's 
breach  of  the  contract. 

The  remaining  question  is  whether  the  General  Term  ought  not  to 
have  ordered  a  new  trial  instead  of  giving  final  judgment  dismissing 
the  complaint.     It  appears  from  the  opinions  that  the  latter  course  was 

1  Part  of  the  opinion,  discussing  another  point,  is  omitted. 


STERNBERGER   V.    M 'GOVERN.  131 

adopted  for  the  reason  that  it  appeared  upon  the  trial  that  the  plaintiffs 
were  aware,  at  the  time  of  the  commencement  of  the  action,  that  the 
defendant  could  not  perform  the  contract,  and  that  in  such  a  case  equity 
would  not  retain  the  suit  for  the  purpose  of  awarding  damages  which 
could  be  recovered  in  an  action  at  law.  This  was  the  rule  prior  to  the 
adoption  of  the  Code."  But  the  Code  authorizes  the  uniting  in  the 
complaint  of  causes  of  action  both  legal  and  equitable  arising  out  of 
the  same  transaction. ^  The  facts  constituting  these  causes  of  action 
must  be  stated  in  the  complaint.  The  court  held  in  that  case  that  no 
facts  constitiiting  a  legal  cause  of  action  were  stated  in  the  complaint, 
and  that  as  the  plaintiff  failed  to  prove  the  equitable  cause  of  action 
stated,  the  complaint  was  properly  dismissed. 

This  shows  that  where  the  complaint  states  facts  giving  an  equitable 
cause  of  action,  and  also  a  legal  cause  of  action  arising  out  of  the  same 
transaction,  the  party  is  entitled  to  have  both  tried  if  necessary  to 
obtain  his  rights.  That  is  this  case.  The  complaint  sets  out  the  con- 
tract, and  alleges  a  tender  of  performance  by  the  plaintiff  and  a  breach 
by  the  defendant,  and  demands  judgment  for  $125,000  and  other  relief. 
True,  he  demands  equitable  relief  based  upon  the  ground  that  he  was 
entitled  to  a  specific  performance  of  that  part  of  the  contract  relating 
to  the  Thompson-street  property.  He  failed  in  showing  a  right  to  this. 
He  then  had  a  right  to  a  trial  of  his  claim  for  damages  sustained  by  the 
breach.  True,  the  mode  of  trial  may  be  different.  The  former  must 
be  tried  by  the  court  or  a  referee  unless  some  question  or  questions  of 
facts  involved  are  ordered  by  the  court  to  be  tried  by  jury.  Either 
party  has  the  right  to  a  jury  trial  of  the  latter.  This  creates  no  prac- 
tical difiicvilty.  The  one  i.ssue  may  be  tried  by  the  court  and  the  other 
by  jury  if  the  ends  of  justice  require  the  trial  of  both,  or  both  may  be 
tried  by  the  court  or  a  referee  if  the  parties  so  desire.  The  judgment 
of  the  General  and  Special  Terms  must  be  reversed  and  a  new  trial 
ordered  ;  costs  to  abide  event. 

FoLGER  and  Johnson,  JJ.,  concurred  ;  Allen,  J.,  concurred  in  the 
result,  in  view  of  the  peculiar  circumstances  of  the  case,  without,  how- 
ever, passing  vipon  the  question  whether  specific  performance  with 
money  compensation  for  inchoate  right  of  dower  ma\'  not  be  awarded 
in  cases  of  exchange,  as  well  as  upon  a  contract  for  the  purchase,  of 
real  propertj' ;  Church,  Ch.  J.,  and  Andrews,  J.,  expressed  no  opin- 
ion ;  Rapallo,  J.,  absent. 

Judgmetit  reversed,  and  a  7ieu'  trial  ordered  ;  costs  to  abide  event. 

1  citing  Morss  j/.  Eltnendorf  (1844),  11  Paige,  277. 

2  Bradley  v.  Aldrich,  40  N.  Y.,  504,  512. 


132  EFFECT   IN    RELATJON   TO   SUBSTANTIVE   LAW. 


PIERCE  V.   CAREY. 
'^/r"  ^         Supreme  Court  of  Wisconsin,  January  Term,   1875. 

itJ^  "/y^f   '^h^  complaint  in  this  action  alleged,  in  one  count,  that  the  defend- 
*^    jty'^^^'  offering  to  sell  plaintiff  a  horse,  warranted  and  fraudulently  rep- 
^     \/^r     resented  said  horse  to  be  kind.'^ound,  and  gentle,  and  not  over  nine 
L/"  years  of  age  ;  that,  at  the  time,  the  horse  was  not  sound,  but  unsound  to 

T^y  the  knowledge  of  defendant,  and  was  lame  and  diseased,  which  was 

well  known  to  defendant ;  and  that  he  intentionally,  falsely,  and  fraud- 
ulently concealed  said  facts  from  the  plaintiff,  etc.  The  answer  admitted 
the  sale,  and  that  defendant  warranted  the  horse  to  be  sound,  kind, 
gentle,  and  not  over  nine  years  old,  and  denied  every  other  allegation 
of  the  complaint. 

The  evidence  on  the  trial  was  conflicting  as  to  the  scienter,  but  tended 
to  show  that  the  horse  was  not  sound  at  the  time  of  sale.  The  court 
instructed  the  jury  that,  if  they  found  that  the  horse  was  unsound  at 
the  time  of  sale,  and  that  defendant  knew  it,  they  must  find  for  the 
plaintiff;  but,  if  they  found  the  horse  was  sound,  or  that  he  was  at  the 
time  unsound,  and  defendant  did  not  know  it,  they  must  find  for  defend- 
ant ;  and  refused  an  instruction  asked  by  plaintiff,  that  the  warranty 
being  admitted,  if  the  proofs  show  the  horse  unsound  at  the  time  of 
sale,  the  plaintiff  must  recover  ;  and  also  refused  an  instruction  that,  in 
an  action  for  breach  of  warranty,  or  tor  false  warranty,  it  is  not  neces- 
sary to  show  that  the  defendant  knew  of  the  unsoundness  at  the  time 
of  making  the  warranty. 

Verdict  for  defendant,  and  the  plaintiff  appealed. 

Norvian  S.  Gibson,  for  appellant. 

James  Coleman,  for  respondent. 

Ryan,  C.  J. —  ^  All  that  goes  to  the  administration  of  justice  should 
be  definite  and  certain.  This  is  almost  equally  essential  to  the  claim, 
the  defence,  and  the  judgment.  "When  these  become  vague  and  loose, 
the  administration  of  justice  becomes  vague  and  loose  ;  with  a  tendency 
to  rest,  not  so  much  on  known  and  fixed  rules  of  law,  as  on  capricious 
judgment  of  the  peculiarities  of  each  case  :  on  a  dangerous  and  eccen- 
tric sense  of  justice,  largely  personal  to  the  judges,  varying  as  cases 
vary,  rather  than  on  abiding  principles  of  right,  controlling  equallj'the 
judgment  of  courts  and  the  rights  of  suitors.  And  it  is  time  that  those 
who  administer  the  code  should  recur  to  its  policy  of  plain  and  direct 
certaintj',  and  rescue  it  from  prostitution  to  duplicity  and  ambiguity, 
and  all  the  juridical  evils  of  loose  and  uncertain  administration,  more 

1  After  quoting  the  paragraph  of  the  remarks  by  Mr.  Chief  Justice  Dixon  in  Super^asors 
of  Kewaunee  County  v.  Decker,  30  Wis.  624,  626,  ante  p.  120,  and  commenting  upon  them  as 
"golden  words  which  should  ever  be  present  in  the  mind  of  every  pleader  under  the  code." 


PIERCE   V.    CAREY.  133 

dangerous  to  even  and  uniform  justice  than  the  worst  technicalities  of 
the  most  intricate  system.  Simplicity,  not  uncertainty,  is  the  object 
of  the  code.  And  pleadings  under  it  should  be  as  certain  in  substance 
as  they  were  before  it ;  more  certain  in  form,  because  freed  from  tech- 
nical formality. 

There  is  an  essential  distinction  between  simple  and  fraudulent  war- 
ranties, which  has  always  been  recognized.'  An  action  ex  contractu  is 
the  only  remedy  on  the  former  ;  an  action  ex  delicto  will  lie  on  the  lat- 
ter. See  2  Chitty's  PI.,  279,  679,  for  the  common  law  forms  of  declara- 
tion in  the  two  cases,  the  distinction  being  in  the  averment  of  a  simple 
warranty  in  the  one  case,  and  of  a  false  and  fraudulent  warranty  in  the 
other.  This  distinction  of  actions  in  tort  and  on  contract  is  as  essential 
under  our  present  practice  as  it  ever  was."  In  cases  of  warranty,  Wil- 
lianison  v.  Allison,  2  East,  446,  seems  to  go  very  far  in  breaking  down 
this  safe  distinction  ;  but  we  cannot  help  regarding  that  and  some 
kindred  cases  in  the  English  courts,  as  loosely  decided,  because  there 
was  there  no  essential  or  resulting  difference  in  recoveries  in  the  two 
forms  of  action.  But  the  difference  may  become  essential  and  import- 
ant where  imprisonment  for  debt  is  abolished.  And  it  is  never  safe  to 
overlook  the  distinction  between  different  forms  of  action,  when  the 
causes  of  action  are  materially  different.  \ 

The  complaint  in  this  case  appears  to  have  followed  a  precedent  in 
I  Abbott's  Forms.  3S4.  It  sets  out  by  averring  a  simple  warranty,  and 
a  fraudulent  representation  to  the  same  effect.  Such  a  representation, 
without  fraud,  operates  as  a  warranty.^  And  so  the  complaint  com- 
mences with  a  duplicity,  expressly  recommended  by  the  author.  For 
that  ingenuous  pleader  states  that  the  fraudulent  representation  is  not 
necessary  to  the  action  on  the  warranty,  but  suggests  that  it  is  well  to 
insert  it,  as  the  evidence  on  trial  may  fail  to  prove  a  warranty,  j-et  maj' 
disclose  a  fraudulent  representation,  upon  which  a  recovery  might  be 
had,  for  the  deceit,  under  his  double  form  of  complaint :  pleading,  in 
other  words,  an  action  ex  contractu  on  a  warranty,  with  a  contingent 
action  ex  delicto  on  a  fraudulent  representation,  in  gremio.  But  we 
apprehend  that  this  duplicity  is  subsequently  cured  in  the  precedent,  as 
it  certainlj'  is  in  the  complaint,  by  averment  of  the  defendant's  scienter 
in  the  warranty,  which  reconciles  the  warranty  with  the  fraudulent 
representation,  and  makes  both  sound  ex  delicto  for  the  deceit.  The 
precedent  avers  a  simple  scienter,  but  the  complaint  here  improves  upon 
that,  and  avers  a  false  and  fraudulent  concealment  in  the  warranty. 
This  is  bej'ond  question  an  action  ex  delicto  on  a  fraudulent  warranty 
and  misrepresentation. 

And  so  the  parties  appear  to  have  dealt  with  the  complaint,  through- 
out, until   the}'  had  rested  their  evidence  on  the  trial.     The  answer 

1  Storj'  on  Sales,  \l  420,  421. 

2  Anderson  7'.  Case,  2S  Wis.,  505. 

3  Austin  1 .  Nickerson,  21  Vis  ,  542. 


134 


EFFECT   IN    RELATION   TO    SUBSTANTIVE   LAW. 


admitted  the  warranty,  but  denied  the  fraud.  And  a  large  share  of  the 
evidence  on  both  sides,  admitted  without  objection,  goes  only  to  prove 
or  disprove  the  scienter  of  the  respondent,  the  fraud  of  the  warranty. 
When  the  evidence  had  closed,  the  appellant  appears  for  the  first  time 
to  have  had  recourse  to  his  special  pleader's  dilemma,  and  asked  for 
instructions  of  his  right  to  recover  as  in  an  action  ex  contractu  on  the 
simple  warranty,  without  proof  of  fraud  or  deceit ;  and  excepted  to  the 
charge  of  the  court  below  that  he  could  recover  only  in  his  action  ex 
delicto,  upon  proof  of  the  respondent's  sciettter  oi  the  falsehood  of  the 
warranty.  The  appellant  made  no  other  election  of  action,  made  no 
offer,  and  asked  no  leave  to  amend  his  complaint.  He  stood  upon  his 
complaint  ex  delicto,  and  asked  to  recover  on  it  ex  contractu.  The  charge 
of  the  learned  judge  of  the  court  below  followed  the  complaint,  and  we 
can  not  but  hold  that  it  was  right. 

Had  the  appellant,  even  then,  asked  leave  to  amend  his  complaint, 
so  as  turn  his  cause  of  action  ex  delicto  into  one  ex  co?itractu,  he  might 
have  been  entitled  to  have  his  action  submitted  to  the  jury  in  his  own 
way.^  On  that  question  we  express  no  opinion.  But,  if  he  had  the 
right  to  amend,  in  such  a  case,  he  was  bound  to  exercise  it.^  Had  a  ver- 
dict gone  against  the  respondent  on  the  instructions  asked,  it  would 
have  convicted  him  on  the  record  of  a  fraud,  when  the  proof  might  have 
established  only  a  breach  of  contract.  And  that,  aside  from  the  ques- 
tion of  his  liability  to  arrest  and  imprisonment  on  execution,  on  which 
we  express  no  opinion,  would  have  been  a  wrong  which  no  court  of  jus- 
tice should  sanction  :  such  a  wrong  as  the  administration  of  the  code, 
in  its  true  spirit  and  significance,  should  render  impossible. 

Had  the  court  below  charged  the  jury  as  the  appellant  requested,  and 
had  the  appellant  thereupon  recovered,  a  question  would  have  arisen, 
whether  his  judgment  could  be  upheld,  which  is  not  now  here,  and  on 
which  we  indicate  no  opinion.^ 

But  when  a  plaintiff,  on  trial,  the  question  of  material  variance 
between  the  case  made  in  the  complaint  and  the  case  proved  on  the 
trial  being  raised  before  the  issue  is  given  to  the  jury,  abides  by  his 
complaint,  without  amendment  or  offer  to  amend,  he  cannot  be  per- 
mitted to  reverse  a  judgment  against  him,  on  the  ground  that  the 
court  below  also  abided  by  his  complaint,  and  refused  to  instruct  the 
jury  that  he  might  recover  for  an  essentially  different  cause  of  action. 

By  the  Court.  Thejudgtnent  of  the  court  below  is  affirmed. 

1  See  City  Bank  v.  McClellan,  21  Wis.  112;  Harris  v.  Wicks,  28  Wis.  198;  Trowbridge  v. 
Barrett.  30  Wis.  661,  and  many  other  cases  in  this  court. 

2  Anderson  v.  Case,  28  Wis.  505. 

3  See  Newton  v.  Allis,  12  Wis.,  378  ;  Samuels  v.  Blanchard,  25  Wis.,  329  ;  Anderson  v.  Case, 
supra. 


LOCKWOOD   V.    QUACKENBUSH. 

LOCKWOOD  V.  QUACKENBUSH. 

Court  of  Appeals  of  New  York,  December  7,  1880. 

[83  N.    Y.  607.] 

The  summons  in  this  action  was  for  relief.  The  complaint  alleged  in 
substance  that  certain  goods,  the  property  of  plaintiff,  were  by  him 
intrusted  to  defendants  as  commission  merchants,  to  be  kept  by  them 
until  instructed  by  plaintiff  to  sell  ;  that  they  were  instructed  not  to 
sell  and  to  return  the  goods  to  plaintiff;  that  in  violation  of  these 
instructions  and  without  authority  they  sold  the  goods  and  converted 
them  to  their  own  use,  and  although  a  demand  was  made  by  plaintiff, 
they  neglected  and  refused  to  comply  therewith  ;  and  judgment  was 
asked  for  the  value  of  the  goods.  The  case  was  tried  upon  the  theory 
of  an  unwarranted  and  unratified  disposition  of  the  goods  by  defend- 
ants, and  plaintiff's  counsel  asked  the  court  to  direct  a  verdict  for 
him  on  the  ground  that  the  goods  were  sold  and  converted  in  violation 
of  instructions  ;  this  was  refused.  The  verdict  was  for  the  defendants. 
Upon  the  appeal,  plaintiff's  counsel  claimed  that  the  court  should  have 
directed  a  verdict  for  plaintiff  for  the  amount  of  money  in  fact  received 
by  defendants  on  the  sale  of  the  goods  as  an  action  ex  contractu.  Held, 
untenable. 

The  court  says  :  "  The  pleadings  and  the  whole  course  of  the  trial 
shut  out  the  idea  of  an  action  ex  contractu.  The  very  reason  given  by 
the  plaintiff,  when  he  asked  the  court  to  direct  a  verdict  for  him,  was 
that  the  goods  were  sold  and  converted  in  violation  of  instructions ; 
and  it  is  plain  that  the  action  was  begun,  and  was  prosecuted  through- 
out, on  the  theory  of  an  unwarranted  and  unratified  disposition,  by  the 
defendants,  of  the  property  of  the  plaintiff.  There  have  been  cases  in 
which,  though  some  of  the  averments  of  the  complaint  have  designated 
a  cause  of  action  in  tort,  there  were  other  averments  which  could  be 
taken  as  alleging  a  cause  of  action  on  contract,  and  where,  at  the  trial, 
the  plaintiff  sought,  upon  ample  evidence  to  that  end,  to  rest  his  right 
to  recover  upon  contract  and  breach  thereof,  the  appellate  court  has 
sustained  the  action  as  one  on  contract.  ^  We  know  of  none  where,  in  | 
the  pleadings  and  in  the  evidence  and  at  the  trial,  the  plaintiff  has 
insisted  upon  a  cause  of  action  ex  delicto,  he  has  been  allowed  in  the 
appellate  court  to  abandon  that  claim  and  have  a  reversal  of  judgment, 
for  that  he  might,  had  he  sued  on  contract,  have  perchance  recovered. 
We  must  reverse  for  error  in  the  court  below.  Where  it  was  not  error 
to  refuse  a  judgment  on  a  cause  of  action  ^'.v  delicto,  we  cannot  reverse, 
because  if  a  judgment  had  been  asked  ex  contractu,  it  might  properly 
have  been  rendered.  In  such  case  it  is  sufficient  to  sa}^  that  the  plaintiff 
did  not  present  that  alternative  to  the  trial  court  ;  and  by  omitting  so 

1  Citing  Conaughty  v.  Nichols,  42  N.  Y.  83. 


136  EFFECT   IN   RELATION   TO   SUBSTANTIVE    LAW. 

to  do  did  not  give  the  opportunitj-  to  the  defendant  of  making  an}^ 
defence  he  might  perhaps  have,  to  an  action  based  upon  contract." 

L.  L.  Bundy,  for  appellant. 

/.  H.  Cliitc,  for  respondents. 

FoLGER,  Ch.  J.,  reads  for  affirmance. 

All  concur.'  J7(dg?nent  affirined. 


STEVENS  :'.   THE  MAYOR,   ALDERMEN,   AND   COMMONALTY 
OF  THE    CITY  OF  NEW  YORK. 

Court  of  Appeals  of  New  York,  March,   i88i. 

[84  N.    Y.  296.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court  of 
the  city  of  New  York,  affirming  a  judgment  in  favor  of  defendant,  en- 
tered upon  the  report  of  a  referee. 

This  action  was  originally  brought  b}'  Russell  D.  Miner ;  he  having 
died  during  its  pendency,  the  present  plaintiff,  as  administratrix  with 
the  will  annexed,  was  substituted. 

The  complaint  alleges  in  substance  that  prior  to  July,  1866,  plaintiff 
was  the  owner  of  certain  premises  in  the  city  of  New  York  ;  that  these 
premises  formed  part  of  a  street  which  had  been  closed,  a  new  street, 
Seventy-eighth  St.,  being  opened,  so  that  the  premises  were  relieved 
from  the  public  easement ;  that  plaintiff  was  ignorant  of  these  facts. 
The  complaint  then  proceeds  as  follows  : — 

That,  in  May,  1866,  the  defendants  offered  for  sale  at  public  auction  certain 
lands  adjoining  the  said  old  street,  and  included  in  such  sale  the  premises  before 
described,  and  that  one  or  more  of  the  purchasers  declined  to  take  title,  on  the 
ground  that  the  plaintiff,  and  not  the  defendants,  was  the  owner  of  such  prem- 
ises ;  and  that  defendants  thereupon  employed  an  agent  to  obtain  for  them  the 
plaintiff's  title,  of  all  which  plaintiff  was  ignorant  until  May,  1869. 

That  in  July,  1866,  the  defendants  applied  to  the  plaintiff  for  a  release  and 
conveyance  of  his  title,  and  at  the  time  of  such  application,  fraudulently,,  and 
with  intent  to  deceive  the  plaintiff,  kept  concealed  from  him  the  fact  of  the 
opening  of  Seventy-eighth  street,  and  also  the  closing  of  the  old  street  ;  and 
further,  falsely  informed  the  plaintiff  that  he  had  some  slight  claim  to  the  said 
portion  of  said  street,  but  that  it  was  a  mere  equitable  claim,  and  of  no  value, 
and  asked  him  to  execute  a  release  or  deed  thereof.  And  that  the  plaintiff,  mis- 
led, deceived,  and  induced  by  such  fraudulent  concealment  and  such  false  ami 
fraudulent  statements  and  misrepresentations,  which  he  believed  to  be  true,  and 
relied  upon,  executed  and  delivered  such  release  without  any  consideration. 
And  that  the  defendants  then  and  there  presented  and  left  with  him  $25  for  his 
trouble,  in  spite  of  his  remonstrance  that  it  was  no  trouble  at  all. 

That  at  the  time  of  executing  such  release,  the  premises  were  worth  $200,000. 

Judgment  was  asked  for  this  amount. 

1  Only  so  tmich  of  the  opinion  is  given  as  refers  fothe  one  point. 


STUVKNS   V.  rim   mayor.  liXC,   ok   THK    city    of    new    YORK.       137 

Defendants  answered  denying?  the  alle.^-ation  of  ownership  in  the 
plaintiff,  and  all  the  allegations  of  fraud  and  concealment.  The  referee 
found  the  execution  and  delivery  of  the  deed  by  Miner,  but  found  also 
that  it  was  executed  "without  any  false  repre.sentations  of  any  kind 
being  made  by  defendants,  or  any  of  their  agents,  to  said  Miner,  and 
without  any  fraud  or  deceit  or  fraudulent  intent,  concealment  or  pro- 
curement of  any  kind, "  and  thereupon  directed  judgment  dismissing 
the  complaint.     Judgment  was  entered  accordingly. 

Further  facts  appear  in  the  opinion. 

T.  M.  Tyng,  for  appellant.  Assuming  that  the  action  is  an  equitable 
action,  and  that  the  facts  and  circumstances  proved  by  the  plaintiff  and 
found  by  the  referee  at  his  request  constitute  fraud  cognizable  in  a 
court  of  equity,  plaintiff  was  entitled  to  a  judgment  fastening  a  trust 
upon  tlie  proceeds  realized  by  the  defendant  upon  the  sale  of  the  land, 
and  requiring  defendant  to  account  for  the  same. 

Francis  Lynde  Stetson,  for  respondent. 

Danforth,  J. — The  names  of  actions  no  longer  exist,  but  we  retain 
in  fact  the  action  at  law  and  the  suit  in  equity.  The  pleader  need  not 
declare  that  his  complaint  is  in  either ;  it  is  only  necessary-  that  it 
should  contain  facts  constituting  a  cause  of  action,  and  if  these  facts 
are  such  as  at  the  common  law  his  client  would  have  been  entitled  to 
judgment,  he  will  under  the  code  obtain  it.  If  on  the  other  hand  thej- 
establish  a  title  to  some  equitable  interposition  or  aid  from  the  court, 
it  will  be  given  by  judgment  in  the  same  manner  as  it  would  formerly 
have  been  granted  by  decree.  So  the  complaint  may  be  framed  with  a 
double  aspect ;  ^  but  in  every  case  the  judgment  sought  must  be  war. 
ranted  by  the  facts  stated.  For  as  was  said  in  Dobson  v.  Pearce,  12 
N.  Y.  156,  "the  question  is,  ought  the  plaintiff  to  recover,"  or  as  in 
Crary  v.  Goodman,  12  N.  Y.  266,  "  whether  according  to  the  whole  law 
of  the  land  applicable  to  the  case  the  plaintiff  makes  out  the  right 
which  he  seeks  to  establish?"  It  is  only  when  he  fails  in  doing  this 
that  he  can  be  treated  as  one  making  a  false  clamor. 

But,  notwithstanding  the  liberality  of  the  law  which  permits  this 
construction,  the  plaintiff  can  have  no  relief  that  is  not  "consistent 
with  the  case  made  by  his  complaint  and  embraced  within  the  issue.  "^ 
He  must,  therefore,  establish  his  allegations^  and  if  they  warrant  legal 
relief  only,  he  cannot  have  eqiiitable  relief  upon  the  evidence.  He 
must  bring  his  case  within  the  allegations  as  well  as  within  the  proof.* 
And  notwithstanding  the  very  learned  and  extended  arguments  advanced 
upon  this  appeal,  we  think  the  case  must  be  decided  upon  the  applica- 
tion of  these  rules.     First,  it  is  quite  evident  that  the  plaintiff  at  the 

1  Wheelock  v.  I,ee,  74  N.  Y.,  500  ;  Hale  v.  Omaha  Nat.  Bank,  49  id.  626  ;  Bradley  v.  Aldrich, 
40  id.  512  ;  Sternberger  t.  IMcGovern,  56  id.  12  ;  Margraf  v.  Muir,  57  id.  159. 

2  Code,  ^  275. 

3  Salter  v.  Ham,  31  N.  Y.  321  ;  Bradley  v.  Aldrich,  40  id.  504  ;  Heywood  v.  Buffalo,  14  id.  504. 
<  Bradley  -v.   Aldrich,   40   N.  Y.  504  ;  Arnold  v.   Angell,  62  N.  Y.  50S  ;  People's  Bank  .'. 

Mitchell,  73  N.  Y.  415. 


138  EFFECT   IN    RELATION   TO   SUBSTANTIVE    LAW. 

outset,  and  before  commencing  his  action,  conceived  himself  entitled  to 
damages  and  nothing  else.  For  in  compliance  with  the  statute  in  that 
respect  he  gave  notice  of  his  claim  to  the  comptroller  and  demanded 
"  payment  of  the  sum  of  $200,000  as  damages  for  the  fraiidulent  obtain- 
ing and  using  of  the  deed  or  release, "  mentioned  in  the  complaint. 
This  being  refused  and  action  commenced,  the  allegations  in  the  com- 
plaint are  to  the  same  effect.  They  describe  the  property  conveyed  by 
the  deed  and,  characterizing  the  application  for  it  as  fraudulent,  declare 
that  at  that  time  the  defendant  was  informed  the  property  belonged  to 
Miner;  that  he  was  ignorant  thereof;  and  that  the  defendant  fraudu- 
lently and  with  intent  to  deceive  and  defraud  the  plaintiff  out  of  his 
aforesaid  property  fraudulently  kept  concealed  from  the  plaintiff  "the 
fact  of  the  opening  of  Seventj^-eighth  street,  and  also  the  fact  of  the 
closing  of  "  a  certain  other  street  (both  material  to  his  title)  ;  that  at 
the  same  time  it  falsely  informed  and  represented  to  him  that  he  had 
some  slight  claim  to  the  said  portion  of  said  street,  but  that  it  was  a 
mere  equitable  claim  and  of  no  value  ;  that  misled,  deceived,  and  induced 
by  such  fraudulent  concealment,  and  such  false  and  fraudulent  state- 
ments and  misrepresentations  as  to  the  said  property,  his  interest  therein 
and  the  value  thereof,  and  believing  the  same  to  be  true  and  relying 
thereon,  and  without  consideration,  he  executed  and  delivered  to  the 
defendant  the  said  deed  or  release ;  that  his  interest  so  conveyed  was 
worth  $200,000,  and  for  that  sum  judgment  is  demanded. 

If  these  allegations  were  admitted  to  be  true,  or  the  defendant  failed 
to  answer,  the  plaintiff  would  be  entitled  to  recover,  and  the  only  pro- 
ceeding consequ£nt  on  such  admission  would  be  an  assessment  of  dam- 
ages. But  so  far  from  that,  the  defendant  answered  and  by  denial  took 
issue  upon  the  averments.  For  the  trial  of  the  issue  so  formed  a  jury 
was  the  appropriate  tribunal,  and  we  find  that  it  was  resorted  to.'  Ex- 
cept b}^  consent  of  both  parties  it  must  have  been  again  sought ;  but 
such  consent  was  given  and  we  have  now  before  us  the  proceedings 
upon  a  trial  before  a  referee.  His  decision  is  to  be  treated  like  the  ver- 
dict of  a  jury,  and  upon  every  issue  he  has  found  in  favor  of  the  defend- 
ant. He  finds  there  was  no  fraud  practiced,  no  fraudulent  contrivance 
or  concealment,  no  fraudulent  intent  on  the  part  of  the  defendant  or  its 
agents.     Besides  this,  actual  good  faith  is  established. 

The  whole  assumed  cause  of  action  is,  therefore,  taken  away.^  Indeed 
it  is  shown  to  have  had  no  existence.  The  General  Term,  by  whom 
the  evidence  is  weighed  and  examined,  have  approved  the  findings  of 
the  referee,  and  the  judgment  directed  by  him  has  been  affirmed.  These 
findings,  having  been  made  upon  conflicting  evidence  or  evidence  alto- 
gether in  favor  of  the  defendant,  are  conclusive  upon  this  court.  ^ 

1  5  J.  &  S.  171. 

2  Miller  v.  Barber,  66  N.  Y.  558  ;  Arnold  v.  Angell,  62  N.  Y.  508  ;  Long  v.  Warren,  68  N.  Y. 
426  ;  Thomas  v.  Beebe,  25  N.  Y.  244. 

3  Quincy  v.  White,  63  N.  Y.  370  ;  Leonard  v.  N.  Y.,  etc.,  Tel.  Co.,  41  N.  Y.  544,  568  ;  Stilwell 
V.  Mutual  Life  Ins.  Co.,  72  N.  Y.  385. 


TRUSTEES   OF    KILBOURN   LOOGE   V.    KILBOURN   AND   OTHERS.       139 

Nor  do  we  find  that  any  error  was  committed  by  the  referee  in  refus- 
ing additional  findings  at  the  request  of  the  plaintiff.  The  questions 
presented  were  either  included  in  the  findings  already  made,  or  de- 
pended upon  inferences  to  be  drawn  from  evidence  not  conclusive,  and 
in  neither  case  can  those  exceptions  be  sustained. ^  Notwithstanding 
this  brief  statement  of  our  conclusion,  we  have  been  compelled,  in  ar- 
riving at  it,  to  examine  the  entire  evidence  and  the  elaborate  and  inter- 
esting briefs  of  counsel  ;  and  in  view  of  the  appellant's  position,  that 
the  case  presented  matters  of  equitable  cognizance,  it  may  be  not  im- 
proper to  state  that  it  seems  to  us  far  from  clear  that  the  circumstances 
are  such  as  to  require  the  strictness  of  the  common  law  to  be  abated,  or 
that  upon  pleadings,  however  framed,  the  plaintiff  could  recover.  There 
was  actual  possession  of  the  land  by  other  parties  and,  as  it  now  seems, 
equities  affecting  the  conscience  of  the  intestate,  if  they  did  not  the 
title,  and  these  circumstances  may  have  led  to  that  prompt  and  almost 
eager  compliance  with  the  defendant's  application,  which  is  now  relied 
upon  as  the  result  of  fraud  or  imbecilit3\  But  without  regard  to  such 
considerations  and  upon  the  ground  before  stated,  we  think  that  the 
appeal  is  not  sustained,  and  that  the  judgment  should  be  affirmed. 

All  concur.  Judgmeiit  affirmed. 


TRUSTEES  OF  KILBOURN  LODGE  v.  KILBOURN  AND  OTHERS  jf^  > 

Supreme  Court  of  Wisconsin,  September,  1SS9.  '^   A-        </ 

[74  n,s.  45..]  ^y^^ 

Appeal  from  the  Superior  Court  of  Milwaukee  Count}'.         <^      -  ^^ 


The  case  is  sufficiently  stated  in  the  opinon.  (W^ '^     '^' 

Samuel  Howard  and  Eugene  S.  Elliott,  for  the  appellant.  'T' 

For  the  respondents  there  was  a  brief  by  E.  Mariner  and  F.   AT. 
Hoyt,  and  oral  argument  by  Mr.  Hoyt. 

Taylor,  J. — The  appellant  commenced  an  action  against  the  respond- 
ents and  Frank  M.  Hoj't  and  Le  Grand  KniflTen  in  the  superior  court  of 
Milwaukee  county,  and  in  such  action  filed  a  complaint  against  all  the 
defendants,  demanding  equitable  relief  against  all  of  them.  To  this 
complaint  Frank  M.  Hoyt  answered.  Kniffen  does  not  appear  to  have  • 
answered  or  demurred.  The  other  defendants,  the  Kilbourns,  Thorn- 
dike,  McCallum,  and  Vizay,  demurred  to  the  complaint,  alleging  as 
ground  of  demurrer  that  the  complaint  does  not  state  facts  sufficient 
to  con.stitute  a  cause  of  action  as  to  them.  Upon  the  hearing  of  tliis 
demurrer  the  court  below  sustained  the  demurrer,  and  from  the  order  l  J  "^  ^ 
sustaining  such  demurrer  plaintiff  appeals  to  this  court,  \*/^  ^    *  "  aa/* 

1  Andrews  v.  Ravmond,  s8  N.  Y.  676.  VV>/^  *'*  Vo^ 


^K^S^"! 


140  EFFFXT    IN    RELATION   TO   SUBSTANTIVE   LAW. 

The  ground  upon  which  the  demurrer  was  sustained  is  that,  upon  all 
the  facts  stated  in  the  complaint,  the  plaintiff  is  not  entitled  to  any 
equitable  relief  against  them.  Under  the  decisions  of  this  court  the 
demurrer  was  properly  sustained,  although  the  facts  stated  may  be 
sufficient  to  constitute  a  cause  of  action  at  law  against  them.  This 
court  has  frequently  decided  that  a  demurrer  to  a  complaint  which  is 
clearly  intended  by  the  pleader  as  a  complaint  in  equity,  because  it 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action,  will  be  sus- 
tained if  the  facts  do  not  constitute  a  cause  of  action  in  equity,  and 
such  demurrer  will  not  be  overruled  on  the  ground  that  such  complaint 
states  a  cause  of  action  at  law.^  The  effect  of  these  decisions  is  that 
upon  such  a  demurrer  the  defendant  may  avail  himself  of  the  objection 
to  the  complaint  that,  upon  the  facts  stated,  the  plaintiff  has  an  ade- 
quate remedy  at  law  and  for  that  reason  his  complaint  is  bad  as  a  com- 
plaint in  equity. 

Upon  the  hearing  of  the  appeal  in  this  case,  the  learned  counsel  for 
the  appellant  argued  at  length  and  with  great  ability  the  c^uestion 
whether  the  plaintiff  had  shown  by  its  complaint  that  it  had  title  to  the 
real  estate  in  question.  This  question,  however,  the  learned  attorney 
for  the  respondents  declined  to  argue,  and  relied  solely  on  the  ground 
taken  by  them  in  the  court  below,  viz.,  that  upon  the  facts  stated  in  the 
complaint  it  clearly  appears  that  the  plaintiff  has  an  adequate  remedy 
at  law.  This  is,  therefore,  the  only  question  we  are  at  liberty  to  deter- 
mine upon  this  appeal. 

After  a  careful  reading  of  the  complaint,  which  sets  forth  at  length 
the  alleged  title  of  the  plaintiff,  and  which,  for  the  purpose  of  this  deci- 
sion, may  be  admitted  to  show  a  good  title  in  the  plaintiff  and  a  right 
to  the  possession  of  the  real  estate  in  question,  we  are  constrained  to 
agree  witb  the  court  below  that  the  plaintiff  has  an  adequate  remedy 
at  law.  The  allegations  of  the  complaint,  upon  the  theory  that 
the  plaintiff  acquired  title  to  the  real  estate  in  question  at  the  time 
stated  in  said  complaint,  show  that  immediately  after  that  date, 
and  before  the  plaintiff  had  taken  any  actual  possession  of  such 
real  estate,  the  defendants  the  Kilbourns  claimed  the  title  and  the 
right  of  possession  adversely  to  the  plaintiff,  and  by  their  tenants  took 
the  actual  possession  of  the  premises,  and  held  such  possession  in 
hostility  to  the  claim  of  the  plaintiff  at  the  time  of  the  commencement 
of  this  action.  This  state  of  facts  shows  clearly  that  an  action  of  eject- 
ment would  be  an  adequate  remedy  for  the  plaintiff.  In  such  action 
the  title  of  the  plaintiff  would  be  adjudicated  as  well  as  the  right  of 
possession  of  the  defendants.  If,  in  such  action,  it  should  be  held  that 
the  plaintiff  had  no  title,  that  would  end  the  controversy  ;  on  the  other 
hand,  if  the  plaintiff's  title  should  be  established,  that  would  end  the 


1  Kewaunee 
V.  C,  M.  &  St. 
Asso.  55  Wis.  350 


Co.  ?'.  Decker,  30  Wis.  624 ;  Tewksbury  v.  .Schulenberg,  41  Wis.  5S4  ;  Denner 
P.  R.  Co.  57  Wis.   218  ;  Pierce  v.  Carey,  37  Wis.  234  ;  Gormely  v.  Gymnastic 


TRUSTEES    OF   KILBOURN   lODQE    f.  KILBOUR.S    AND   OTHEK>.  141 

controversy,  because  in  such  action  the  phiintifT  would  recover  of  the 
tenants  and  their  landlords,  the  Kilbourns,  rent  for  the  use  of  the 
premises  as  well  as  damages  if  any  injury  or  waste  to  the  premises  had 
been  committed  by  the  defendants.  There  seems  to  us  an  entire  absence 
of  any  sufficient  reason  for  invoking  the  aid  of  a  court  of  equity  to 
settle  the  rit^hts  of  the  parties  to  this  action.  It  seems  very  clear  to 
us  that  a  court  of  equity  would  have  no  power  to  compel  the  tenants 
of  Kilbourn  to  attorn  to  and  become  the  tenants  of  the  plaintiff,  against 
their  consent.  In  a  contest  between  the  plaintiff  and  the  tenants  the 
court  can  only  determine  whether  the  tenants  or  the  plaintiff  has  the 
title  or  right  to  the  possession,  but  it  cannot  force  the  tenants  of  the 
claimant,  Kilbourn,  to  become  the  tenants  of  the  plaintiff.  The  com- 
plaint charges  no  fraud  on  the  part  of  the  Kilbourns  or  on  the  part  of 
their  tenants.  It  simply  charges  that  the  Kilbourns  have  no  title  to 
the  premises  or  to  the  rents  arising  out  of  the  same,  except  what  is 
secured  to  them  by  the  lease  which  it  sets  up  as  the  plaintiff 's  title. 
The  other  allegations  of  the  complaint  show  that  the  Kilbourns  deny 
this  alleged  fact,  and  claim  to  have  an  interest  in  the  premises  hostile 
to  the  title  of  the  plaintiff.  They  as.sert  a  legal  title  hostile  to  the 
pjlaintifif's  title,  and,  being  in  the  actual  pos.session,  the  proper  wa}'  to 
determine  the  rights  of  the  parties  is  by  an  action  of  ejectment. 

The  fact  that  the  complaint  shows  a  cause  of  action  in  equity  against 
the  defendant  Hoyt  does  not  help  the  plaintiff  as  again.st  the  demurring 
defendants.  Hoyt  does  not  question  the  sufficiency  of  the  complaint, 
and  has  answered  the  same. 

Bv  the  Court. — The  order  of  the  superior  court  is  affirmed,  and  the 
cause  is  remanded  to  the  superior  court  of  INIilwaukee  county  for  further 
proceedings  according  to  law.' 

1  In  GuUickson  v.  Madsen  (1894),  87  Wis.  19,  23,  the  court  reaffirms  the  doctrine  of  this 
case,  as  "  so  often  held  that  reference  to  a  few  only  of  the  later  cases  is  permissible,"  cit- 
ing Denner  v.  C.  M.  &  St.  P.  R.  R.  Co.,  57  Wis.  218;  Trustees  v.  Kilbourn,  74  Wis.  452  ;  .\very 
V.  Ryan,  74  Wis.  599  ;  Stein  v.  Benedict,  83  Wis.  603. 

Note  the  form  of  the  doctrine  in  Graham  -•.  The  Chicago  Ry.  Co.  (1S81),  53  Wis.  473,  481  : 
"This  court  has  decided  that  the  whole  complaint  must  be  considered  for  the  purpose  of 
determining  what  cause  of  action  is  stated  or  intended  to  be  stated  ;  and,  when  it  is  ascer- 
tained what  cause  of  action  the  pleader  intended  to  set  out  in  his  complaint,  the  sufficiency 
of  the  facts  stated  to  sustain  such  cause  of  action  must  be  determined  by  the  court,  upon  a 
demurrer  to  the  complaint  on  the  ground  that  it  does  not  state  facts  sufficient  to  coii-stitute 
£  cause  of  action  ;  and  the  complaint  must  be  held  bad  if  the  facts  stated  are  insufficient  to 
constitute  the  cause  of  action  intended  to  be  stated,  notwithstanding  they  may  be  sufficient 
^o  constitute  some  other  cause  of  action.  (.Sup'rs.  of  Kewaunee  County  v.  Decker,  30  Wis. 
624.)  Under  this  rule,  this  court  held,  on  the  former  appeal  in  this  case,  that,  as  the  orig- 
inal complaint  was  in  tort,  and  as  the  second  amended  complaint  stated  facts  sufficient  it 
themselves  to  constitute  an  action  for  a  tort,  they  would  presume  that  the  pleader  intended  to 
go  upon  the  tort  as  his  ground  of  action,  and  not  upon  the  implied  assumpsit.  To  hold  that 
the  amended  complaint  was  intended  to  be  an  action  of  tort,  would  be  consistent  with  the 
original  cause  of  action  stated,  and  would  be  a  permissible  amendment.  To  hold  otherwise 
would  be  inconsi-stent  with  the  original,  and  not  permissible." 

And  compare  "The  Theory  of  the  .\ction."  as  developed  by  the  Indiana  decisions,  note 
to  Bingham,  Admr.,  v.  S*age  (1S90),  123  Ind.  2S1,  infra. 

But  see  Meyer  v.  Garthwaite  (1S96),  92  Wis.  571,  572  :  "The  objection  to  the  jurisdiction  of 
a  court  of  equity  on  the  ground  that  the  plaintiff  has  an  adequate  remedy  at  law  must  be 


142  EFFECT   IN   RELATION   TO  SUBSTANTIVE   LAW. 

BINGHAM,  ADMINISTRATOR,  v.  STAGE. 
\|      Supreme  Court  of  Judicature   of   Indiana,  February  25,   1890. 
^rt^  [123  //id.  281.] 

\y/  ^       Berkshire,  J. — This  -is  an  action  upon   two  promissory  notes  and  to 

(f    ^'^      foreclose  a  mortcrage.     The  complaint,  in  substance,  is  that  on  the  28th 

^^         day  of  June,  1858,  one  William  Donot  executed  to  the  decedent,  Joseph 

^       /      Donot,  the  mortgage  sued  upon,  to  secure  the  payment  of  a  number  of 

^       /  promissory  notes  executed  by  the  said  William  to  the  said  Joseph,  and 

4/  among  others  the  two  notes  in  suit ;  that  on  the  ist  day  of  October, 

^  1880,  the  said  Joseph  died,  still  being  the  holder  and  owner  of  said 

notes  and  mortgage;  that  on  the  12th  day  of  March,  1867,  the  said 

William  sold  and  conveyed  the  said  real  estate  to  the  appellee,  who,  as 

a  part  of  the  purchase  money,  assumed  and  agreed  to  pay  the  said 

notes  ;  that  after  the  death  of  the  said  Joseph  the  appellee  wrongfully 

obtained  possession  of  the  said  notes  and  mortgage,  and  mutilated  the 

same  by  tearing  off  the  name  of  the  payor  ;  that  said  notes  are  still  due 

to  the  estate  of  the  decedent,  and  wholly  unpaid. 

After  filing  a  demurrer  to  the  complaint,  which  was  overruled,  the 
appellee  filed  an  answer  in  three  paragraphs.     The  first  paragraph  is  a 
general  denial ;  the  second,  a  plea  of  payment ;  and  the  third  may  be 
\^  termed  a  special  plea  of  payment.     It  is,  in  substance,  as  follows  :  That 

)^        j^l  on  the  ist  day  of  October,  1880,  the  said  Joseph  Donot,  the  payee  of 
A^/***^        said  notes  and  mortgage,  died,  leaving  a  widow,  Maria  Donot,  and  sev- 
^        *0-        eral  children ;  that  at  the  time  of  his  death,  he  left  property,  real  and 
^i^  personal,  worth  less  than  $500,   the  amount  allowed  by  law  to  his 

•^^    \  widow  ;  that  she  paid  his  funeral  expenses  and  the  expense  of  his  last 
^^  JjfA'      sickness;  that  just  before  his  death,  the  said  decedent  not  being  in- 
^  debted  to  any  one,  gave  the  notes  in  suit  to  his  said  wife  for  her  sup- 

port ;  that  after  the  death  of  the  said  Joseph,  and  when  the  first  one  of 
said  notes  became  due,  the  said  widow,  having  them  and  the  said  mort> 
gage  in  her  possession,  asked  the  appellee  to  pay  both  of  said  notes, 
and  he,  acting  in  good  faith,  and  believing  that  she  was  the  owner  of 
the  same,  and  entitled  to  receive  payment,  paid  the  amount  due  thereon 
to  the  said  widow,  and  she  surrendered  the  same  to  the  appellee,  and 
she  at  the  same  time  executed  a  release  of  said  mortgage. 

taken,  in  the  first  instance,  by  answer  or  demurrer  on  that  ground,  or  it  is  waived.  It  can. 
not  be  raised  afterwards  by  a  demurrer  oie  tenus  on  the  trial.  Tenney  v.  State  Bank,  20 
wis.  152,  164;  Sherrj'  n.  Smith,  72  Wis.  339  ;  Sweetser  ?'.  Silber,  87  Wis.  102.  The  only  ques. 
tion  which  could  properly  be  raised  by  the  demurrer  ore  tenus  is,  Does  the  complaint  state 
a  cause  of  action  in  equity  ?    Sherry  z/.  Smith,  supra."     Per  Newman,  J. 

In  the  case  last  cited,  it  was  held  that  if,  in  matters  of  equitable  cognizance,  a  possible 
objection  that  the  plaintiff  has  an  adequate  remedy  at  law  is  not  taken  by  demurrer  or 
answer,  it  ceases  to  be  available  and  the  court,  in  such  case,  "will  adjudge  on  the  merits  of 
the  action,  without  regard  to  the  fact  that  there  is  also  an  adequate  remedy  at  law."  Per 
Lyon,  J.,  in  Sherry  v.  Smith  (1888),  72  Wis.  339,  342. 


BINGHAM,  AUMINi8?EAT0R,    C   STAGE. 


143 


To  the  third  paragraph  of  answer  the  appellant  filed  a  demurrer, 
which  was  overruled  by  the  court,  and  he  saved  an  exception.   .   .   . 

In  our  opinion,  the  third  paragraph  of  the  answer  is  bad.  An  answer, 
like  a  complaint,  must  ])roceed  upon  some  single  definite  theory,  which 
must  be  determined  from  the  general  character  and  scope  of  the  pleading.' 

When  it  appears  by  the  prayer  and  whole  tenor  of  a  pleading  that  it 
was  formed  on  a  definite  theory,  and  it  is  insufiicient  on  that  theory,  it 
will  be  held  bad  on  demurrer,  though  the  facts  averred  may  be  suffi- 
cient on  a  different  theorj-.- 

Isolated  and  detached  allegations  in  a  pleading  which  are  not  essen- 
tial to  support  its  main  theory  should  be  disregarded.^ 

"The  object  of  pleading  is  to  present,  in  a  distinct  and  definite  form. 
questions  of  fact  for  trial,  and  this  object  cannot  be  accomplished  un 
less  parties  are  required  to  .state  positively  the  facts  upon  which  they 
rely,  and  in  accordance  with  a  distinct,  definite,  and  controlling  theory. 
If  ambiguous  pleadings  are  tolerated,  no  issue  can  be  framed  which  will 
present  in  an  intelligible  form  questions  for  trial,  and  perplexity  and 
confusion  will  necessarily  result."*  And  further  on  in  the  opinion  it 
is  said  :  "Of  course,  causes  of  action  may  be  stated  in  difierent  para- 
graphs, but  in  such  cases  each  paragraph  must  be  complete  in  itself."'' 

It  is  true,  as  we  have  seen,  that  the  said  third  paragraph  of  answer 
alleges  that  when  the  decedent  died  his  estate  was  not  worth  $500,  the 
amount  allowed  to  the  widow,  and  that  she  had  paid  his  funeral  ex- 
penses and  the  expenses  of  his  last  sickness.  Had  these  facts  been 
pleaded  in  an  answer,  the  scope  and  theory  of  which  would  have  been 
that  the  estate  of  the  decedent  being  worth  less  than  $500,  and  the 
widow  having  paid  all  claims  to  which  the  estate  would  be  subje-ct  in 
her  hands,  she  was  entitled  to  the  whole  estate,  and,  therefore,  entitled 
to  the  said  promissory  notes,  and  to  receive  payment  thereof,  we  would 
have  a  different  question  before  us.  But  we  must  regard  the  theory'  ©f 
the  answer  to  be,  that  the  notes  belonged  to  the  widow  because  of  the 
fact  that  her  husband  had  in  his  lifetime  passed  the  ownership  thereof 
to  her  by  a  gift  inter  vivos. 

The  facts  relating  to  the  gift  seem  to  us  to  be  the  overshadowing 
facts  pleaded  in  the  answer,  and  what  is  alleged  with  reference  to  the 
amount  and  value  of  the  estate,  etc.,  we  regard  as  isolated  and  detached 
allegations,  which  are  not  essential  to  the  scope  and  theory-  of  the  answer. 

We  do  not  think  that  this  paragraph  of  answer  alleges  such  facts  as 
constitute  a  gift  inter  vivos. 

The  facts  alleged  do  not  show  a  deliver}-  of  the  notes  by  the  decedent, 
the  donor,  to  his  wife,  the  donee. 


1  Citing  First  Nat'l  Batik,  etc.,  v.  Root,  107  Ind.  224. 

2  Citing  Cottrell  v.  Aetna  L,ife  Ins.  Co.,  97  Ind.  311. 

3  Citing  Cottrell  -■.  Aetna  Life  Ins.  Co.,  97  Ind.  311. 

4  Western  Union  Tel.  Co.  ?•.  Reed,  96  Ind.  195. 

6  See  Peters  -.■-  Guthrie,  119  Ind.  44  ;  Wagner  !■.  Winter,  122  Ind.  57 


^ 


144  EFFECT   IN    RELATION   TO   SUBSTANTIVE    LAW. 

So  far  as  we  can  ascertain  from  the  answer  there  was  no  delivery  or 
surrender  of  the  possession  of  the  notes  by  the  donor  to  the  donee.  All 
that  is  alleged  may  be  true,  and  the  testator  have  continued  in  posses- 
sion of  the  notes,  and  to  exercise  dominion  over  them  to  the  day  of  his 
death.     This  being  true,  there  was  no  valid  gift.   .   .' 

Because  of  the  error  of  the  court  in  overruling  the  demurrer  to  the 
third  paragraph  of  answer,  the  judgment  must  be  reversed." 

1  Citing  Smith  v.  Dorsey,  38  Ind.  451,  and  Smith  ?■.  Ferguson,  90  Ind.  229. 

2  Only  so  much  of  the  opinion  is  given  as  refers  to  the  one  point. 

NOTE   ON    THK   THEORY   OF    THE    ACTION. 

Common  law  pleading  was  characteristically  a  pleading  according  to  the  plaintiff's  the- 
ory of  the  legal  relation  subsisting  between  himself  and  the  defendant.  It  has  become  a 
favorite  doctrine  with  the  Indiana  courts,  and  has  some  countenance  in  other  courts,  that  in 
code  pleading  "a  complaint  must  proceed  upon  9.dme^  definite  theory,  and  on  that  theory 
the  plaintifiLltm&t"-sJ*cce6dT~efcJtQt.^acceed  at, all.''  Mescall  v.  Tully  (1S83),  91  Ind.  96,  99. 
Among  other  cases  inculcating  this  form  of  doctrine,  under  more  or  less  varj'ing  conditions, 
are  :^udy  v.  Gilbert  (iSSi),  77  Ind.  96,  100  :  "  A  complainant  cannot  base  his  complaint  upon 
one  definite  theory  and  then  claim  a  right  to  relief  upon  another,"  citing  Lockwood  v, 
Quackenbush,  83  N.  Y.  607.  Western  Union  Tel.  Co.  v.  Young  (1S83),  93  Ind.  118,  119  :  "A 
pleading  is  to  be  judged  from  its  general  tenor  and  scope  and  not  from  detached  or  isolated 
allegations.  Where,  as  here,  the  controlling  theory  upon  which  the  pleading  proceeds,  is 
that  there  is  a  contract  absolving  from  liability,  it  must  be  good  on  that  theory  or  it  will  not 
be  good  at  all."  Western  Union  Tel.  Co.  v.  Reed  (1S84),  96  Ind.  195,  198,  giving  reasons  for 
the  rule  and  citing  a  number  of  cases.  Cottrell  v.  Aetna  Life  Ins.  Co.  (18S4),  97  Ind.  311,  313. 
Chicago  Ry.  v.  Bills  (1S85),  104  Ind.,  13,  16.  Wadkins  ;-.  Hill  (1S86),  106  Ind.  543,  544:  "It  is 
settled  law  that  a  pleading  must  be  good  on  the  theory  on  which  it  assumes  to  be  con- 
structed or  it  will  fall  before  a  demurrer."  First  National  Bank  v.  Root  (1886),  107  Ind.  224, 
228.  Sherwood,  Admr.  v.  City  of  Lafayette  (18S6),  109  Ind.  411,  423.  Green  v.  Groves  (18S6), 
109  Ind.  519,  522.  Palmer  v.  Chicago  Ry.  (1887),  112  Ind.  250,  262.  Gregory,  Admr.  v.  C.  C.  C. 
&  I.  Railroad  (18S7),  112  Ind.  385,  387  :  "  As  was  in  effect  said  in  Louisville  Railway  Co.  v. 
Bryan,  107  Ind.  51.  there  is  a  clear  distinction  between  cases  which  count  upon  negligence  as 
a  ground  of  action  and  those  which  are  founded  upon  facts  of  aggressive  wrong  or  wilful- 
ness, and  a  pleading  should  not  be  tolerated  which  proceeds  upon  the  idea  that  it  maj'  be 
good  either  for  a  wilful  injury  or  as  a  complaint  for  an  injury  occasioned  by  negligence.  It 
should  proceed  upon  one  theory-  or  the  other,  and  is  to  be  judged  from  its  general  tenor 
and  scope."  Lane  v.  Schlemmer  (18S7),  114  Ind.  296,  298.  Stults  i/.  Brown  (1887),  112  Ind. 
370,  372.  Armacost  v.  Lindley  (1888),  116  Ind.  295,  297  :  "It  has  often  been  decided  that  every 
pleading  must  proceed  upon  some  single,  definite  theory,  and  that  a  party  must  stand  or 
fall  upon  the  theory  of  his  case  as  he  presents  it  in  his  pleading.  A  recovery  will  be  upheld 
only  when  the  evidence  and  the  facts  found  support  the  case  made  by  the  complaint  "  Feder 
V.  Field  (1SS8),  117  Ind.3S6,  391  :  "The  law  is  well  settled  that  a  complaint  must  proceed  upon 
a  definite  theory,  that  the  cause  must  be  tried  on  the  theory  constructed  by  the  pleadings, 
and  such  a  judgment  as  the  theory  selected  warrants  must  be  rendered  and  no  other  or  dif- 
ferent one."  Hays  V.  Montgomery  (188S),  118  Ind.  91,  93.  Pearson  v.  Pearson  (1890),  125 
Ind.  341,  344.  Horn  v.  Indianapolis  Bank  (1S90),  125  Ind.  381,  385.  Racer  v.  The  State  (1S91), 
131  Ind.  393,  402  :  "  Itiswellsettled  that  a  pleading  must  proceed  upon  some  definite  theorj'.  It 
is  clear  that  an  intelligent  issue  could  never  be  formed  if  there  were  no  such  rule,  and  hence 
the  courts  have  adhered  to  the  rule  with  strictness."  Jackson  v.  Landers  (1893),  134  Ind. 
520,  534.  Copeland  v.  Summers  (1894),  138  Ind.  219,  226  :  "  Every  pleading  must  proceed  upon 
some  single,  definite  theory,  and  if  bad  upon  the  theor>'  upon  which  it  proceeds  it  cannot  be 
sustained  upon  some  other  theory."  The  Carmel  Natural  Gas  Co.  ?■.  Small  (1S97),  150  Ind. 
427,  431  ;  "  It  is  settled  law  that  a  complaint  must  be  good  on  the  theory  on  which  it  pro. 
ceeds  or  it  will  not  be  good  at  all,  even  though  it  states  facts  euough  to  be  good  on  some 
other  theory." 

As  to  what  constitutes  the  theory  of  one  form  of  civil  action,  under  this  doctrine,  see  Mon- 
nett  V.  Turpie  (1892),  133  Ind.  424,  given  in  the  text ;  and  compare  Platter  v.  City  of  Seymour 
(1882),  86  Ind.  323,  326;  Moorman  v.  Wood  (188S),  117  Ind.  144,  147;  Chicago  Railway  v.  Bur- 
ger (1890),  124  Ind.  275,  276  ;  Comegys  z/.  Eraerick  (1892),  134  Ind.  148,  152;  Balue  z/.  Taylor 


MONNETT   V.  TURPIE.  145 

MONNETT  V.  TURPIK  v^ 

Supreme   Court   of   Judicature  ok  Indiana,  November  3,   1892. 

[133  Ind.  424.] 

From  the  Carroll  Circuit  Court. 

E.  P.  Hammoiid,  M.  F.  Chilcote,   IV.  B.  Austin,  for  appellants. 

L.   Walker  and  W.  B.  McClintic,  for  appellees. 

Miller,  J. — The  action  of  the  court,  in  refusing  to  grant  the  appel-. 
lant  a  trial  by  jur}-,  is  the  only  question  involved  in  this  appeal. 

The  complaint  consisted  of  three  paragraphs.  The  first  paragraph 
shows  that  on  and  prior  to  January  5.,  1881,  Thomas  Monnett  was  the 
owner  of  several  distinct  tracts  of  land  in  Carroll  and  White  counties, 
Indiana,  and  in  Prairie  county,  in  the  State  of  Arkansas  ;  that  he  was, 
and,  for  a  long  time  prior  thereto,  had  been  a  person  of  unsound  mind, 
of  which  the  defendants  had  notice;  that  on  that  da}',  with  full  knowl- 
edge that  he  was  of  unsound  mind,  the  defendants,  James  H.  Turpie 
and  William  Turpie,  fraudulently,  and  without  consideration,  induced 
him  to  convey  to  them,  by  certain  instruments  of  writing  purporting 
to  be  warranty  deeds,  all  of  said  real  estate  ;  that  on  the  23d  day  of  June, 
1881,  the  said  Thomas  Monnett  was,  on  inquest  duly  had,  declared  to 
be  a  person  of  unsound  mind,  and  incapable  of  managing  his  own 
estate,  and  a  guardian  of  his  person  and  estate  was  appointed  ;  that  on 
the  4th  da}'  of  April,  1883,  the  guardian  demanded  a  reconve5'ance  of 
all  of  said  lands  to  the  said  ward,  at  the  same  time  tendering  them,  for 
execution,  a  conveyance  to  that  effect ;  that  they  refused,  and  still 
refuse,  to  execute  the  same. 

Subsequently  Thomas  Monnett  died,  and,  by  supplemental  complaint, 
his  heirs  were  sustituted  as  plaintiffs.     The  prayer  for  relief  is  : 

"Wherefore  the  plaintiff  prays  the  court  for  a  judgment  disaffirming  the  said 
deeds  to  said  defendants,  James  H.  Turpie  and  William  Turpie,  and  cancelling 
the  same,  and  that  the  title  to  said  lands,  by  the  decree  of  the  court,  be  revested 
in  the  plaintiff,  freed  and  discharged  from  all  claims  of  the  said  defendants,  and    | 
each  of  them,  and  for  such  other  relief  as  may  be  equitable  and  just." 

The  other  paragraphs  of  complaint,  in  so  far  as  they  affect  the  question 
involved,  do  not  differ  from  the  first. 

The  appellants,  after  the  inquest  of  lunacy  and  disaffirmance  of  the 
conveyances,  had  their  election  to  pursue  either  one  of  the  two  courses  : 
title  revested  in  the  grantor,"  in  which  case,  the  Chancery  Court  having 

(1893),  136  Ind.  368,  373;  American  Wire  Nail  Co.  v.  Connelly  (1893),  8  Ind.  App.  398,403; 
Doll  V.  C.  C.  C.  &  St.  L.  R.  R.  (1899K  21  Ind.  App.  571,  575. 

See  also,  among  cases  calling  for  a  strict  theory  of  the  action,  Jacobson  v.  Brftoklyn  Ele. 
vated  Railway  (1898),  48  N.  Y.  Supp.  1072  ;  Leek  7^.  Rudd  (1898),  53  N.  Y.  Supp.  20S,  both 
given  in  the  text,  infra. 


^ 


r 


146  EFFECT   IN    RELATION   TO    SUBSTANTIVE    LAW. 


Firsf.  To  treat  the  conveyances  as  having  been  avoided  by  the  dis- 
affirmance, and,  if  out  of  possession,  sue  in  ejectment,  or  to  quiet  title.^ 
y  Second.  Proceed  in  equity  to  have  the  conveyances  cancelled  and  the 
'  title  revested  in  the  grantor,-  in  which  case,  the  Chancery  Court  having 
jurisdiction  of  an  essential  part  of  the  case,  the  whole  is  drawn  into 
equity.^ 

To  determine  which  of  these  courses  the  appellants  elected  to  pursue 
is  to  determine  their  right  to  a  trial  by  jury.  If  the  complaint  is  an 
action  to  quiet  title,  as  provided  by  our  code,  section  1070,  the  action 
was  triable  by  a  jury,  and  the  court  erred  in  refusing,  upon  appellant's 
motion,  to  submit  the  cause  to  a  jury  for  trial.*  If,  on  the  contrar>\ 
the  action  was  for  the  cancellation  of  the  deeds,  it  was  one  that,  prior 
to  the  i8th  day  of  June,  1852,  would  have  fallen  within  the  exclusive 
jurisdiction  of  a  court  of  equity,  and  was  triable  by  the  court. '^ 

The  nature  of  the  action  must  be  determined  from  the  general  char- 
acter and  scope  of  the  pleading,  disregarding  isolated  and  detached 
allegations  not  essential  to  the  support  of  its  main  theory.^  The  court 
will  construe  the  pleading  as  proceeding  upon  the  theory  which  is  most 
apparent  and  most  clearly  outlined  by  the  facts  stated.'  The  complaint 
will,  if  possible,  be  given  such  construction  as  to  give  full  force  and 
effect  to  all  its  material  allegations,  and  such  as  will  afford  the  pleader 
full  relief  for  all  injuries  stated  in  his  pleading. 

We  have  arrived  at  the  conclusion  that  the  complaint  must  be  regarded 
as  a  complaint  for  equitable,  rather  than  legal,  relief.  The  complaint 
is  destitute  of  some  of  the  allegations  found  in  an  ordinary  complaint 
to  quiet  title, ^  and  contains  much  that  is  unusual  and  unnecessary  in 
s-ich  actions.  While  the  nature  of  the  action  must  be  determined  from 
the  substantive  facts  pleaded,  and  not  from  the  prayer  for  relief,'  the 
statement  of  the  relief  demanded  may  be  looked  to,  in  connection  with 
the  otl.er  averments.'"  The  primary  object  of  the  action  seems  to  have 
been  the  cancellation  of  the  conveyances.  The  vague  and  uncertain 
reliet  asked  for — the  revesting  of  the  title  in  the  grantor,  freed  of  the 
claims  of  the  defendants — is  insufficient  to  give  character  to  the  pleading. 

There  is,  however,  another  element  in  the  case  which,  beyond  ques- 
tion, characterizes  the  action  as  one  for  equitable  relief;  that  is  the  fact 
that  the  conveyance  of  the  real  estate,  situate  in  the  State  of  Arkansas, 

1  Brown  V.  Freed,  43  Ind.  253 ;  Freed  v.  Brown,  55  Ind.  310 ;  Nichol  v.  Thomas,  53  Ind.  42  . 
Long  V.  Williams,  74  Ind.  115. 

2  I  Pomeroy's  Eq.,  section  no. 

3  Towns  V.  Smith,  115  Ind.  480  ;  Quarl  v.  Abbett,  102  Ind.  233  :  Lake  v.  Lake,  99  Ind.  339 
■4  Puterbaugh  v.  Puterbaugh,  30  N.  E.  Rep.  519  ;  Trittipo  v.  Morgan,  99  Ind.  269;  Johnson 

V.  Taylor,  106  Ind .  89  ;  Kitts  v.  Willson,  106  Ind.  147. 
i  Section  409,  R.  S.,  1S81. 

6  First  Nat'l  Bank  v.  Root,  107  Ind.  224  ;  Cottrell  v.  Aetna  Life  Ins.  Co.,  97  Ind.  311  ;  Bing- 
ham, Admr.,  v.  Stage,  123  Ind.  281  ;  City  of  Ft.  Wayne  v.  Hamilton,  132  Ind.  487. 

7  Batman  v.  Snoddy,  132  Ind.  480. 

8  Miller  v.  City  of  Indianapolis,  123  Ind.  196. 

9  Martin  v.  Martin,  118  Ind.  227. 
IC  Galway  v.  State,  ex  rel.,  93  Ind.  161. 


PETERSON    :-.    STOUGHTON    STATE    HANK.  147 

is  set  forth  and  made  a  material  part  of  the  complaint.  This  real  estate 
being  situate  in  another  state,  wholly  beyond  the  jurisdiction  of  the 
courts  of  this  state  to  quiet  the  title  thereto,  conclusively  shows  that 
that  was  not  the  object  of  the  suit.  We  could  not  presume  that  the 
plaintiff  instituted  an  action  upon  a  particular  theory,  when,  according 
to  that  theory,  a  material  and  substantial  portion  of  the  subject  matter 
of  the  action  was  wholly  without  the  jurisdiction  of  the  court,  if 
another  theory,  equally  sustained  by  the  facts  pleaded  and  relief 
demanded,  would  bring  the  whole  subject-matter  of  the  action  within 
its  jurisdiction. 

If  the  action  was  in  equity,  the  court  having  jurisdiction  of  the  person 
was  able,  by  process  against  the  defendants  in  personam,  to  enforce  its 
decrees  affecting  the  land  without,  as  well  as  within  the  state.  ^ 

The  appellants  having  elected  to  proceed  in  equity,  they  thereby 
deprived  themselves  of  the  privilege  of  submitting  their  cause  to  a  jury 
for  trial.     We  find  no  error  in  the  record. ^  Judgment  affirmed. 


PETERSON  V.  STOUGHTON  STATE   BANK. 

Supreme  Court  of  Wisconsin,  November,   1890. 

[78   Wis.  113.] 

Appeal  from  the  Circuit  Court  for  Dane  County. 

The  following  statement  of  the  case  was  prepared  by  Mr.  Justice  Cas- 
soday  : 

The  complaint  alleges,  in  effect,  that  a  short  time  prior  to  June  23, 
1888,  the  plaintiff  was  indebted  to  the  defendant  upon  several  promis- 
sory notes  and  other  demands  to  the  aggregate  amount  of  $778.05,  a, 
and  that  the  defendant  also  held  other  notes  and  demands  against  the      (^    " 
plaintiff  for  collection,  amounting  in  the  aggregate  to  $669.75,  making  a             "^ 
total  of  $1,447.80  ;  that  a  few  days  prior  to  June  23,  1888,  the  plaintiff      ^^^ 
caused  to  be  paid  to  the  defendant  on  said  aggregate  indebtedness  the         \/^ 
sum  of  $518.94,  leaving  a  balance  of  $928.86  ;  that  on  the  day  and  3'ear            ^ 
last  mentioned  the  defendant  falsely  claimed  and  represented  to  the 
plaintiff  that  he  was  still  indebted  on  the  several  notes  and  demands  so 
owned  by  the  defendant,  and  so  held  by  it  for  collection,  in  a  sum  ex- 
ceeding $1,200,  with  interest  at  the  rate  often  per  cent.,  and  thereupon 
th&  defendant  exacted  security  for  said  indebtedness  ;  and  that  the  plain- 
tiff, without  knowing  the  amount  of  such  aggregate  indebtedness,  and 

1  Coon  V.  Cook,  6  Ind.  268;  Dehart  v.  Dehart,  15  Ind.  167  ;  Bethell  v.  Bethell,  92  Ind.  318; 
1  Pomeroy's  Eq-,  section  135. 

2  On  the  question  as  to  the  effect  of  the  one  form  of  action  on  the  right  to  trial  by  jury 
see  Davis  v.  Morris  (1S67)  36  N.  Y.  569,  and  Cogswell  v.  New  York  Ry.  (1887),  105  N.  Y.  319,  both 
given  in  the  text,  infra.  Compare  also  Gunsaullus,  Adra'r.,  v.  Pettit,  Adm'r.,  46  O.  S.  27,  ante, 

p.66. 


148  e;ffect  in  relation  to  substantive  law. 

relying  upon  such  representation.s  of  the  defendant,  executed  and  de- 
livered to  the  defendant  a  note  and  mortgage  for  $1,200,  which  was  in 
excess  of  the  claims  so  owned  and  held  by  the  defendant,  in  the  sum  of 
$271.14;  that  the  defendant  thereupon,  for  value  received,  sold  and 
transferred  said  note  and  mortgage  of  $1,200  to  another  party,  and  also 
sold  and  transferred  a  note  upon  which  there  was  still  due  $148.06,  and 
which  note  and  said  note  and  mortgage  the  plaintiff  was  liable  to  pay 
to  the  holder  thereof;  that  the  $148.06,  so  outstanding  against  the 
plaintiff  on  such  note,  and  said  $271.14,  made  $419.20,  which  the 
plaintiff,  by  virtue  of  the  mortgage,  paid  the  defendant  in  excess  of  the 
indebtedness  so  owned  and  so  held  for  collection  by  the  defendant. 
Judgment  is  demanded  for  that  amount,  with  interest  at  ten  per  cent,, 
from  June  23,  1888,  with  costs. 

The  answer  admitted  the  paying  of  said  $518.94  as  stated,  and  the 
giving  and  transfer  of  said  note  and  mortgage  of  $1,200,  and  the  trans- 
fer of  a  note  with  a  balance  due  thereon  of  about  $148,  and  claimed  that, 
at  the  time  of  making  said  payment  of  $518.94,  the  plaintiff  was  indebted 
on  notes  and  claims  owned  by  the  defendant,  and  also  on  notes  and 
claims  held  by  it  for  collection,  in  an  amount  aggregating  about  $1,900. 

At  the  close  of  the  trial,  the  jury  returned  a  verdict  in  favor  of  the 
plaintiff  and  against  the  defendant  for  $460.20,  and  from  the  judgment 
entered  thereon  the  defendant  appeals. 

For  the  appellant  there  was  a  brief  by  Bas/iford,  O'Connor  &  Polleys, 
and  oral  argument  by  R.  M.  Bashford. 

For  the  respondent  there  was  a  brief  signed  by  Luse  &  Wait,  and 
oral  argument  by  L.  K.  Ljise. 

Cassoday,  J. — Among  the  instructions  rejected  is  one  to  the  effect 
that  the  action  was  for  money  had  and  received,  in  the  sum  of  $419.20, 
with  interest  from  June  23,  1888.  The  general  charge,  in  effect,  so 
treated  the  case  throughout.  At  the  beginning  of  the  trial,  the  defend- 
ant's counsel  asked  the  court  for  an  interpretation  of  the  complaint  as 
to  whether  it  was  an  action  for  money  had  and  received,  or  for  tort,  but 
the  court  at  that  time  declined  to  express  such  opinion.  By  reason  of 
such  ruling,  the  counsel  for  the  defendant  thereupon  objected  to  any  evi- 
dence under  the  complaint,  which  was  overruled.  Soon  after,  the  learned 
presiding  judge  stated,  in  effect,  that  he  supposed  it  was  an  action  on 
contract ;  that,  although  he  did  not  so  rule,  he  thought  it  was  an  action 
for  money  received  or  security  taken.  At  common  law  it  was  quite 
important  that  the  pleadings  should  reveal  the  particular  class  to  which 
the  action  was  supposed  to  belong!  Jjut  m  this  state  the  forms  of  civil 
actions  are  abolished,  and  the  pleadings  in  such  actions  in  courts  of 
record,  and  the  rules  b}"  which  the  sntihrier^oy  nf  [l^e  pleadings,  are 
determined,  are  those  prescribed  bv  statute.'  The  statute  specifically 
prescribes  what  the  complaint  should  contain — including  a  plain  and 
concise  statement  of  the  facts  constituting  the  cause  of  action.''     The 

1  Sees.  2600,  2644,  R.  S.  2  Sec.  2646,  R.  S. 


DALTON   :'.    VANDERVEER.  149 

allegations  of  the  complaint  in  the  case  at  bar  comply  with  that  sec- 
tion, and  the  proofs  support  the  allegations.  Had  the  complaint  been 
indefinite  and  uncertain,  or  contained  repugnant  allegations,  thedefend- 
would  have  had  his  remedy.  We  perceive  no  error  in  the  ruling  of  the 
court  mentioned.' 


DALTON  z'.  VANDERVEER. 

Supreme  Court  of  New  York,  Special  Term,  May,  1894. 

[31  AM.  N.  C.  430.-] 

Gaynor,  J. — The  complaint  alleges  in  sum  and  substance  that  the 
defendant  owned  a  tract  of  sixty-five  acres  of  land,  and  in  order  to 
secure  the  experience  and  assistance  of  the  plaintiff  in  laying  it  out  in 
lots  and  streets,  and  selling  it  off  by  lots  at  auction  or  private  sale, 
entered  into  an  agreement  of  co-partnership  with  the  plaintiff,  whereby 
the  plaintiff  was  given  a  certain  interest  in  common  with  the  defendant 
in  the  lands  and  the  future  proceeds  of  sales  thereof;  that  out  of  svich 
proceeds  the  defendant  was  first  to  be  paid  the  mone3'S  expended  in  pre- 
paring the  land  for  sale  by  lots,  as  aforesaid,  the  agreement  requiring  him 
to  advance  it  all,  and  then  $3,000  an  acre  for  the  tract,  after  which  the 
overplus,  if  any,  should  be  divided  between  the  parties;  the  plaintiff's 
share  to  be  one  quarter  ;  and  that  after  the  plaintiff"  had  so  plotted  and 
prepared  the  land  for  sale,  and  a  large  number  of  the  lots  had  been 
actually  sold,  the  defendant  notified  the  plaintiff  that  he  dissolved  the 
partnership,  and  refused  to  go  on  any  further  with  the  enterprise  as  a 
joint  one  ;  and  the  prayer  is  for  a  judgment  declaring  the  plaintiff  to  be 
a  part  owner  of  the  land,  for  the  appointment  of  a  receiver  to  sell  the 
land,  and  for  an  accounting  and  division. 

The  answer  denies  the  co-partnership,  and  alleges  that  the  plaintiff 
was  only  the  employee  of  the  defendant. 

The  proof  shows  that  there  was  no  co-partnership,  but  that  the  plain- 
tiff was  employed  as  an  agent  by  the  defendant  to  prepare  the  land  for 
sale  and  sell  it,  as  aforesaid,  and  that  for  his  services  he  was  to  be  paid 
one-quarter  of  the  overplus,  as  already  stated  ;  and  that,  after  the  con- 
tract had  been  partly  performed,  a  large  number  of  sales  having  been 
made,  the  defendant  discharged  the  plaintiff.  The  cause  of  action  which 
the  proof  presents  is,  therefore,  one  for  damages  for  breach  of  contract 
for  services.  The  amount  already  realized  from  sales  is  easily  ascer- 
tained. Past  sales  furnish  evidence  of  the  time  and  effort  it  would  take 
to  sell  off"  all  of  the  lots,  and  also  of  the  price  for  which  the  lots  can  be 
sold,  and  it  would  not  be  difficult  to  otherwnse  prove  their  value ;  so 

1  Only  so  much  of  the  opinion  is  given  as  refers  to  the  one  point. 

2  Same  case,  29  N.  Y.  Supp.  342,  8  Misc.  4S4,  59  St.  R.  254,  23  Civ.  Pro.  443. 


loO  EFFECT   IN   RELATION   TO    SUBSTANTIVE   LAW. 

that  no  diflSculy  would  be  encountered  in  proving  the  damage  which 
the  plaintiff  has  sustained  by  the  breach  of  the  contract.  In  this  state 
of  the  case,  may  the  court  go  on  and  assess  the  damage  in  this  action, 
or  must  the  complaint  be  dismissed?  The  complaint  states  a  case 
which  is  within  the  jurisdiction  of  equity,  and  is  not  an  action  at  law, 
but  the  evidence  fails  to  sustain  the  complaint,  and  also  fails  to  make 
out  any  case  which  is  within  the  jurisdiction  of  equity.  This  beingso, 
must  not  the  complaint  be  dismissed  ? 

The  origin  of  the  High  Court  of  Chancery  in  England  was  due  wholly 
to  the  inabilit}',  and,  to  a  limited  extent,  the  unwillingness  of  the  com- 
mon law  courts  to  entertain  and  give  relief  in  every  case,  and  thus 
meet  all  the  requirements  of  justice.  The  common  law  courts  paid 
such  deference  to  forms  and  precedents  that  they  became  slaves  to  them. 
Their  jurisdiction  was  thus  circumscribed.  They  adhered  to  certain 
precise  writs  and  rigid  forms  of  action  which  were  not  sufficiently  com- 
prehensive to  enable  them  to  give  adequate  redress  in  some  cases  of 
injustice  and  wrong,  or  to  give  any  redress  in  many  others.  In  such 
cases  the  aggrieved  person  was  remediless,  except  he  could  get  a  hear- 
ing of  the  king  himself  Petitions  by  those  in  such  case  were,  there- 
fore, frequently  presented  to  the  king,  asking  for  relief  of  him  as  a  matter 
of  grace,  because  it  could  not  be  got  of  his  courts.  From  the  fact  that 
the  king  usually  referred  such  petitions  to  his  secretary,  called  his 
chancellor,  they  came,  in  course  of  time,  to  be  presented  to  the  chan- 
cellor directly  by  the  suitors  themselves  ;  and  thus,  gradually,  and  at 
a  time  which  history  cannot  enable  us  to  precisely  fix,  the  court  of 
chancery  came  to  be  established.  As  is  seen,  its  jurisdiction  was 
wholly  extraordinary.  Relief  was  afforded  by  it  only  in  those  cases 
wherein  the  common  law  courts  either  could  give  no  redress  at  all,  or 
could  not  give  adequate  redress  ;  and  anyone  coming  to  chancery  with 
a  case  which  did  not  need  its  extraordinary  jurisdiction,  but  could  be 
adequately  dealt  with  in  the  common  law  courts,  was  dismissed  for  lack 
of  jurisdiction. 

Thus  side  by  side,  there  existed  the  court  of  chancery  and  the  com- 
mon law  courts,  each  with  a  distinct  jurisdiction,  the  test  of  chancery's 
jurisdiction  in  any  given  case  being  that  the  suitor  could  either  get  no 
relief,  or  could  not  get  adequate  relief,  in  a  court  of  common  law.  And, 
therefore,  necessarily,  there  also  grew  up,  not  only  two  distinct  systems 
of  practice  in  these  courts,  but  also  two  distinct  systems  of  substantive 
jurisprudence,  that  in  the  Court  of  Chancery  being  the  system  which 
we  call  equity.  In  the  formation  of  the  government  of  this  state  these 
two  distinctive  kinds  of  courts  and  systems  were  given  a  place  from  the 
beginning,  and  the  Court  of  Chancery  here  was  clothed  with  the  gen- 
eral jurisdiction  and  powers  of  the  High  Court  of  Chancery  in  England. 
Separate  courts  thus  administered  these  separate  systems  of  jurispru- 
dence in  this  state  until,  by  the  constitution  of  1846,  the  court  of  chan- 
cery was  abolished  and  its  jurisdiction  and  powers  were  devo  ved  upon 


DALTON   V.    VANDERVEER.  151 

the  Supreme  Court.  From  that  time  on  the  same  court  has  adminis- 
tered justice  under  both  systems ;  but,  all  the  same,  the  two  systems 
have  necessarily  preserved  their  identity  and  continued  to  exist.  The 
Court  of  Chancery  is  gone,  but  the  system  of  equity  jurisprudence 
remains,  and  is  still  administered,  but  by  the  same  court  which  also 
administers  the  common  law  system.  There  is  onl}^  one  court  to  admin- 
ister both  systems,  but  they  remain  distinct  systems. 

This  much  have  I  said  because  we  seem  sometimes  to  lose  sight  of  it 
and  think  otherwise.  The  cause  of  this  is,  no  doubt,  the  enactment  in 
our  first  civil  procedure  code  of  1848,  and  found  in  our  present  revised 
code  of  civil  procedure,  namely :  ' '  There  is  only  one  form  of  civil 
action.  The  distinctions  between  actions  at  law  and  suits  in  equity, 
and  the  form  of  those  actions  and  suits,  have  been  abolished."  '  But 
this  enactment  relates  only  to  the  two  systems  of  practice,  and  has  no 
reference  to  the  two  systems  of  substantive  jurisprudence.  They  .still 
exist  side  by  side,  but  the  separate  systems  of  practice  under  which 
they  were  formerly  administered  have  been  abolished,  and  the  one  sys- 
tem of  our  practice  statute  substituted.  It  is  in  this  view  that  our 
Court  of  Appeals  has  said  that  "the  distinction  between  legal  and 
equitable  actions  is  as  fundamental  as  that  between  actions  ex  cofitractu 
and  ex  delicto,  and  no  legislative  Jiat  can  wipe  it  out.  "  -  And  again, 
that  "the  names  of  actions  no  longer  exist,  but  we  retain,  in  fact,  the 
action  at  law  and  the  suit  in  equity."^  And  again,  that  "although 
the  distinction  between  actions  at  law  and  suits  in  equity  is  abolished, 
the  distinguishing  features  between  the  two  classes  of  remedies,  legal 
and  equitable,  are  as  clearly  marked  and  rigidly  observed  as  they  ever 
were,  and  this  is  necessary  to  the  administration  of  justice  in  an  orderly 
manner  and  the  preservation  of  the  substantial  rights  of  suitors."* 
In  a  word,  the  forms  are  all  that  are  changed.  The  two  distinct  systems 
of  justice  still  remain,  though  they  are  administered  by  the  same  court, 
under  one  system  of  practice. 

This  brings  me  down  to  saying  what  must  be  done  with  this  action. 
Under  our  existing  system,  both  actions  at  law  and  suits  in  equity 
being  brought  in  the  same  court,  they  are  in  regular  course  placed  upon 
separate  calendars  by  the  parties  themselves,  namely  actions  at  law 
upon  the  calendar  of  causes  to  be  tried  by  a  jury,  and  equity  actions 
upon  the  calendar  of  causes  to  be  tried  by  the  court  without  a  jur\'. 
When  chancery  existed  as  a  separate  court,  if  a  suitor  came  there  with 
a  common  law  action  he  was  dismissed  for  lack  of  jurisdiction.  But 
now,  if  a  plaintiflF  place  an  action  at  law  upon  the  equity  calendar,  and 
notice  it  for  trial  there,  he  may  not  be  dismissed  out  of  court.  The 
court  may,  of  its  own  motion,  refuse  to  hear  it  and  send  it  to  the  jurj' 
calendar ;  or,   if  the  court  be  willing  to  hear  it,   the  defendant  may, 

1  §  3339- 

2  Gould  7'.  Cayuga  County  Nat.  Bank,  86  N.  Y.  75,  83. 

3  Stevens  v.  The  Mayor,  etc.,  of  N.  Y.,  84  N.  Y.  304. 

4  Chipman  v.  Montgomery,  63  N.  Y.  221,  230. 


152  EFFECT   IN   RELATION   TO  SUBSTANTIVE   LAW. 

nevertheless,  by  demanding  a  jur>^  trial,  have  the  cause  sent  to  the  jury 
calendar  ;  and,  if  he  does  not  so  demand,  he  waives  the  right  to  a  jurj- 
trial  and  confers  jurisdiction  upon  the  court  to  hear  it  without  a  jury  ; 
and  the  rule  is  the  same  whichever  side  has  so  placed  it  upon  the  calen- 
dar and  noticed  it.'  The  cause  of  action  stated  in  the  complaint  in  this 
action  being  wholly  equitable,  and  in  no  respect  constituting  an  action 
at  law,  the  case  was  properly  placed  upon  the  equity  calendar  and 
noticed  for  trial  there  by  the  parties.  For  the  same  reason,  the  defend- 
ant had  no  right  to  demand  a  jur>^  trial. 

The  case  presented  by  the  complaint  was  not  one  which  entitled  the 
plaintiff  to  a  jury  trial,  and  he  was  bound  by  the  complaint  in  that 
respect.  It  cannot,  therefore,  be  claimed  that  he  waived  a  trial  by  jurj- 
of  the  cause  of  action  presented  by  the  evidence.  Nor  can  it  be  said 
that,  by  failure  to  plead  in  his  answer  that  the  defendant  had  an  ade- 
quate remedy  by  an  action  at  law,  he  has  waived  his  right  to  so  claim 
now.  When  chancery  existed  as  a  separate  court,  and  a  suitor  came 
there  asking  for  equitable  relief  upon  a  statement  of  facts  in  his  bill 
upon  which  he  could  get  full,  complete,  and  adequate  relief  in  an  action 
at  law,  the  chancellor  was  free  to  so  inform  him  and  refuse  to  be  vexed 
by  his  suit ;  but,  in  order  that  the  defendant  might  so  insist  and  have 
the  suit  dismissed  on  his  motion,  it  was  necessary  for  him  to  so  plead 
in  his  answer,  in  default  of  which  he  was  held  to  have  waived  that 
defence  and  submitted  the  cause  to  chancery  for  equitable  disposition, 
provided  that  court  could  in  the  end  make  any  such  disposition  of  it ; 
and  such  is  still  the  rule  of  pleading. ^ 

But  the  facts  stated  in  the  complaint  made  the  action  at  bar  an  equit- 
able onesolel}',  and  not  of  legal  cognizance,  and,  therefore,  the  defendant 
could  not  properly  have  pleaded  that  the  plaintiff  had  an  adequate 
remedy  in  an  action  at  law.  He  was  not  required  to  plead  that  upon 
the  actual  facts  which  the  plaintiff  had  not  pleaded  the  plaintiff  could 
get  adequate  redress  in  an  action  at  law.  He  was  only  required  to  plead 
to  the  complaint ;  and  the  complaint  being  framed  solely  for  equitable 
relief,  it  being  found  tipon  trial  that  the  plaintiff  is  not  entitled  to  such 
a  relief,  the  court  cannot  entertain  the  action  to  give  judgment  for  dam- 
ages, or  to  amend  the  complaint  so  as  to  change  the  action  into  one  at 
law.* 

The  complaint  is,  therefore,  dismissed,  with  costs. 

1  Code  Civ.  Pro.,  ^  1009. 

2  Graudin  v.  LeRoj-,  2  Paige.  509;  Wiswall  v.  Hall,  3  Id.  313  ;  LeRoy  v.  Piatt,  4  Id.  77; 
Truscott  V.  King,  6  N.  Y.  147  ;  Town  of  Mentz  v.  Cook,  108  Id.  504;  Ostrander  v.  Weber,  114 
Id.  95  ;  Watts  -'.  Adler,  130  Id.  646. 

3  Wheelock  ?■.  Lee,  74  N.  Y.  495;  Oakville  Co.  v.  The  Double-pointed  Tack  Co.,  105  Id.  658; 
Bockes  V.  Lansing,  74  Id.  437. 


DEVLIN    :•.    MAYOR,    ETC.,    OE    CITY    OE    NEW    YORK    ET    AE.  153 


DEVLIN  v.   MAYOR,   ETC.,   OF    CITY  OF    NEW    YORK  ICT    Ah. 

Common  Pleas  of  New  York  City  and  County,  General  Term, 

June  5,   1893. 

[23  iV.    r.   Snpp.  888.  ■] 

Action  by  John  B.  Devlin,  as  administrator  of  Charles  Devlin,  de- 
ceased, against  the  mayor,  aldermen,  and  commonalty  of  the  city  of 
New  York  ;  and  Thomas  Hope  individually,  and  as  administrator  of  A. 
S.  Hope,  deceased ;  Samuel  Donaldson;  Martin  Thatcher,  as  trustee  of 
Tilly  R.  Pratt,  deceased  ;  and  Charles  F.  Blish,  as  administrator  of 
Charles  D.  Blish,  deceased, — to  recover  for  work  performed  under  a 
contract  with  the  city  for  cleaning  the  streets  thereof,  and  for  a  breach 
of  such  contract  by  the  city.  From  a  judgment  for  plaintiff,  entered 
upon  the  report  of  a  referee,  the  defendant  the  mayor,  etc.,  of  the  city 
of  New  York,  appeals. 

Argued  before  BrookstavER,  Bischoff,  and  Pryor,  JJ. 

William  H.  Clark,  Fra?icis  Lynde  Stetson  and  Franklin  Bartlett,  of 
counsel,  for  appellant.. 

Joseph  J.  Marrin,  T.  C.  Cronin,  and  E.  T.  Schcnck,  for  respondents. 

Bischoff,  J. — Pursuant  to  a  resolution  adopted  by  the  common  coun- 
cil and  approved  by  the  mayor  on  the  nth  day  of  Februar3%  1861,  the 
corporation  of  the  city  of  New  Y^ork,  on  the  26th  day  of  February,  1861, 
entered  into  a  contract  in  writing  with  Andrew  J.  Hackle3'  by  the  terms 
of  which  he  undertook  to  clean  and  keep  clean  "all  the  paved  streets, 
avenues,  lanes,  alleys,  and  all  gutters,  wharves,  piers,  and  heads  of 
slips  in  the  city  of  New  York,  "  as  therein  particularly  provided,  for  a 
period  of  five  years  from  the  day  of  the  date  of  the  contract ;  and  the 
corporation  agreed  to  pay  him  for  such  services  an  annual  sum  of 
$279,000  in  semimonthly  installments.  The  contract  also  expressly 
permitted  Hackley  to  dispose  of  "all  ashes,  garbage,  rubbish,  and 
sweepings  of  every  kind  ' '  for  his  own  benefit.  Immediately  after  it 
was  awarded  and  entered  into,  Hackley  conveyed  a  quarter  interest  in 
the  contract  each  to  Lewis  Davis,  Anthony  S.  Hope,  and  Thomas  Hope, 
and  on  the  i6th  day  of  May,  1863,  when  further  performance  of  the 
work  was  prevented  by  the  municipal  authorities,  Hackley 's  entire 
original  interest  had  by  mesne  assignments  been  transferred,  one-eighth 
to  Charles  Devlin,  one-half  to  Samuel  Donaldson,  one-quarter  to  Charles 
D.  Blish,  and  one-eighth  to  Tilly  R.  Pratt. 

Hackley  and  his  assignees  at  once  entered  upon  the  performance  of 
the  work,  and  so  continued  until  the  i6th  day  of  May,  1863,  when,  as 
before  stated,  the  officers  of  the  municipal  government  refused  to  permit 
them  to  proceed,  and  assumed  control  of  the  street  cleaning,  assigning 
as  the  ground  for  so  doing  that  Hackley  and  his  assignees  had  failed  to 

1  S.  C,  4  Misc.  106. 


154  EFFECT   IN    RELATION   TO   SUBSTANTIVE    LAW. 

carry  out  the  contract  on  their  part.  At  that  time  there  remained  due 
and  unpaid  from  the  corporation  five  semi-monthly  installments  of 
$11,625  each,  which  had  become  pa3-able  by  the  terms  of  the  contract ; 
and  a  further  sum  of  $2,345,  the  proportion  for  three  days,  had  accrued 
for  the  installment  next  to  become  payable,  amounting  in  the  aggre- 
gate to  the  sum  of  $60,450.  After  an  ineffectual  attempt  on  the  part  of 
Devlin,  Donaldson,  and  Blish  to  induce  the  proper  municipal  officers  to 
adjust  their  respective  claims  for  monej-s  earned  under  the  contract,  and 
for  damages  resulting  from  the  corporation's  alleged  breach  of  it,  Dev- 
lin, in  Januarj-,  1864,  instituted  this  action  to  recover  his  share  of  both 
demands.  As  codefendants  with  the  corporation  he  named  Anthony  S. 
Hope,  Thomas  Hope,  Samuel  Donaldson,  Charles  D.  Blish,  and  Tilly  R. 
Pratt,  asserting  in  his  complaint  that  they  severally  claimed  to  be  enti- 
tled to  some  portion  of  the  monej-s  due  and  the  damages  recoverable 
under  the  Hackley  contract  from  the  defendant  the  mayor,  etc.  A  for- 
mer trial  resulted  in  a  judgment  for  the  plaintiff  upon  both  demands 
urged  against  the  corporation,  but  on  appeal  the  court  of  appeals 
reversed  it  on  the  particular  ground  that  the  recovery  erroneously 
included  as  an  element  of  the  damages  resulting  from  the  breach  of  the 
contract  benefits  which  would  have  accrued  to  Hackley  or  his  assig- 
nees from  subcontracts  had  they  been  permitted  to  proceed  with  their 
performance  of  the  work.  The  authority  of  the  mayor  and  common 
council  to  enter  into  the  contract  with  Hacklej',  the  assignability  of  the 
latter's  interests,  the  right  to  enforce  these  interests  bj^  his  assignees, 
and  the  plaintiff 's  right  to  recover  in  this  action  for  monej-s  earned 
under  the  contract,  as  well  as  for  damages  resulting  from  its  breach  by 
the  corporation,  were,  however,  sustained.'  On  the  second  trial  any 
justification  of  the  corporation's  recission  of  the  contract  because  of 
Hackley 's  or  his  assignees'  nonperformance  or  negligent  performance 
was  substantially  abandoned.  The  plaintiff  again  recovered  to  the 
extent  of  his  interest  therein  both  for  moneys  earned  and  damages, 
and  a  like  recover^'  was  awarded  against  the  defendant  the  mayor,  etc., 
in  favor  of  each  of  its  codefendants. 

It  is  now  urged  on  behalf  of  the  defendant  (appellant)  the  mayor, 
etc.,  that  this  action  is  for  common-law  relief  only ;  that  plaintiff's 
rights  as  assignee  of  part  of  the  several  demands  made  against  it  under 
the  Hackle3^  contract  are  of  equitable  cognizance,  enforceable  only  by 
an  action  in  equity  ;  and  hence  that  plaintiff  was  not,  nor  is  his  admin- 
istrator, entitled  to  maintain  this  action.  We  do  not  differ  from  the 
view  taken  by  the  general  term  of  this  court  on  a  former  appeal,  and 
concur  that  the  only  relief  sought  by  plaintiff  against  the  defendant  the 
mayor,  etc.,  at  the  inception  of  the  action  was  for  the  enforcement  of 
common-law  demands, ^  and  are  nevertheless  of  the  opinion  that  the 
action  was  properly  brought.  That  a  part  owner  of  one  entire  demand 
may  recover  his  share  from   the  debtor  in  assumpsit  was  ruled  in  Risley 

1  Devlin  v.  Mayor,  etc.,  63  N.  Y.  8.  2  Devlin  v.  Mayor,  etc.,  54  How.  Pr.  50-58. 


THE   TIFFIN    GLASS   COMPANY    V.    STOEHR.  155 

V.  Bank,  83  N.  Y.  318.     Under  our  system  of  remedial  justice  introduced 
by  the  adoption  of  the   Code  of  Procedure,   both  legal  and  equitable 
relief  may  be  administered  in  the  same  action.     It  matters  not  that  the 
complaint  prays  judgment  for  common-law  relief  only.     If  the  court 
has  acquired  jurisdiction  of  all  the  parties  necessary  to  a  complete  deter- 
mination of  the  controversy,  and  the  facts  alleged  and  proved  entitled 
the  plaintiff  to  particular  relief,  that  relief  must  be  accorded  him  irre- 
spective of  whether  or  not  it  is  denominated  legal  or  equitable.     The 
right  of  recovery  no  longer  depends  upon  any  distinction  in  the  form 
of  procedure,  but  upon  the  facts  averred  and  proved.     The  code  has 
swept  away  all  ancient  distinction  between  "legal  "  and  "equitable'' 
actions,    and  has  substituted  therefor  one  form   of   action — a    "civil 
action."     "  In  a  purely  legal  action,  or,  to  speak  more  correctly,  in  an 
action  where  the  plaintiff  sets  forth  and  mainly  relies  upon  a  legal 
primary  right  or  title,  and  asks  a  remedy  which  is  purely  legal,  he  may 
still  invoke  the  aid  of  an  equitable  right  or  title  which  he  holds,  or  of 
which  he  may  avail  himself,  in  order  to  maintain  his  contention,  and 
obtain  the  legal  relief  which  he  seeks.     This  is  a  more  indirect  union 
of  legal  and  equitable  rights  and  causes  of  action  than  exists  in  any  of 
the  instances  heretofore  discussed  ;  but  it  is  none  the  less  a  union."  ^ 
To  the  same  effect  is  Stevens  v.  Mayor,  etc.,  84  N.  Y.  296.     Here  the 
complaint  sets   forth   every   fact  essential   for  the  predication  of  the 
claims  for  moneys  earned  under  the  contract  and  for  damages  resulting 
from  its  breach  by  defendant  the  mayor,  etc.     It  likewise  avers  that 
the  plaintiff  and  the  defendants  other  than  the  mayor,  etc.,  are  entitled 
to  the  whole  of  such  claims  in  the  proportion  of  their  several  interests 
therein  as  the  assignees  of  Hackley .     If  these  allegations  are  sustained 
by  the  proof,  what  does  it  matter  that  plaintiff 's  rights  are  ' '  equitable,  " 
not  "legal  "?     He  would  in  either  case  be  entitled  to  recover>^  and  the 
court  would  be  enabled  to  proceed  to  a  complete  determination  of  the 
controversy.^ 


THE  TIFFIN  GLASS  COMPANY  v.  STOEHR. 

Supreme  Court  op  Ohio,  February  25,   1896. 

[54  O.  S.  I57-] 

Error  to  the  Circuit  Court  of  Seneca  County. 
Noble,  Keppel,  &  Noble,  for  plaintiff  in  error. 
Seney  &  Say  lev,  for  defendant  in  error.  ^ 

MiNSHALL,  J. — The  action  below  was  brought  by  Daniel  H.  Stoehr 
against  the  Tiffin  Glass  Company  for  the  amount  due  him  upon  a  con- 

1  Pom.  Rem.  &  Rem.  Rights,  (2d  Ed.)  ?  85,  p.  105. 

2  Part  of  the  opinion,  dealing  with  other  questions,  is  omitted. 

3  The  arguments  are  omitted. 


156  EFFECT   IN    RELATION   TO   SUBSTANTIVE   LAW. 

tract  of  service.  By  the  contract  the  company  had  employed  the 
plaintiflf  as  a  traveling  salesman  in  its  business  at  the  rate  of  $150  per 
month  from  July  i,  1890,  to  January  i,  1892,  and  his  expenses.  The 
plaintiff  entered  upon  his  employment  and  continued  to  serve  the 
defendant  until  December  26,  1890,  when  the  company,  being  in  embar- 
rassed circumstances  and  having  no  further  use  for  his  services,  dis- 
charged him.  On  March  5,  1891,  he  commenced  suit  for  the  amount, 
$486.74,  then  due  him,  March  i— being  the  difference  between  his  sal- 
ary and  expenses  at  that  time  and  the  amount  that  had  been  paid  him. 
After  the  expiration  of  his  term  of  service,  on  January  15,  1892,  he 
filed  a  supplemental  petition,  in  which  he  averred  that  after  diligent 
efforts  to  obtain  employment  he  had  been  able  to  earn  but  $875.72,  that 
in  his  efforts  to  obtain  employment  he  had  expended  $134.92,  and  so 
that,  allowing  a  credit  for  what  he  had  earned,  there  was  due  him  the 
additional  sum  of  $759.18,  with  interest,  for  which,  with  the  original 
sum  claimed,  he  asked  judgment.  The  defendant  answered.  The 
making  of  the  agreement  was  admitted ;  but  issue  was  taken  upon 
many  of  the  other  averments  ;  and,  as  a  separate  defence,  it  was  averred 
that  on  February  i,  1S91,  the  Glass  Company  was,  by  order  of  the  court 
of  common  pleas  of  Seneca  count}-,  in  a  proceeding  duly  instituted, 
declared  dissolved,  and  that  it  thereafter  had  no  legal  existence  or  power 
to  do  business  or  to  accept  or  pay  for  the  services  of  the  plaintiff.  The 
case  was  tried  to  the  court,  which  found  the  averments  of  the  petition 
and  supplemental  petition  to  be  true  ;  and,  whilst  it  did  not  allow  the 
plaintiff  for  the  expenses  incurred  by  him  in  his  efforts  to  obtain 
employment,  rendered  judgment  in  his  favor  for  the  amount  due  accord- 
ing to  the  agreement,  less  the  amount  paid  him  and  what  he  had 
earned,  making  $1, 187.32. 

A  motion  for  a  new  trial  was  made  and  overruled,  and,  on  error,  the 
judgment  was  affirmed  by  the  circuit  court.  Two  errors  are  relied  on  : 
(i)  That  the  plaintiff  mistook  his  remedy,  and  (2)  That  bj^  the  dissolu- 
tion of  corporation,  it  ceased  to  exist,  and  was  no  longer  liable  on  its 
contract  of  employment  with  the  plaintiff. 

I.  As  to  the  first  objection  that  the  plaintiff  mistook  his  remedy; 
this  is  based,  we  think,  on  a  misapprehension  of  the  character  of  the 
plaintiff's  petition.  It  is  claimed  to  be  an  action  to  recover  the  wages 
due  the  plaintiff  on  the  contract,  whereas  it  should  have  been  to  recover 
damages  for  the  breach  of  it.  We  agree  with  the  counsel  that,  on  the 
facts  as  pleaded,  the  plaintiff  could  not,  properly  speaking,  recover  for 
wages  on  the  contract,  and  that  his  right  of  recovery  was  damages  for 
the  breach  of  it.  But  the  facts  pleaded,  the  making  of  the  contract, 
his  discharge,  efforts  to  obtain  emploj'ment,  and  the  allowance  of  what 
he  obtained  thereby,  entitled  him  to  recover  as  da.mages  the  difference 
between  what  he  earned  and  what  he  would  have  received,  had  he  not 
been  wrongfull}'  di.scharged.'     And  under  the  liberal  principles  of  our 

1  James  -<.•.  Allen  County,  44  O.  S.  22b. 


M'CLURE    :'.    LA    PLATA    COUNTY.  157 

code,  it  can  make  no  difierence  what  he  termed  the  number  of  dollars 
he  conceived  himself  entitled  to  recover,  provided  that  on  the  facts 
stated,  he  was  entitled  to  recover  something.  The  judgment  rendered 
was  in  fact  for  damages  and  not  for  wages  ;  it  was  for  what  the  plaintiff 
lost  by  the  breach  of  the  contract  by  the  defendant.  The  plaintiff  did 
not  mistake  his  remedy.  He  had  but  one,  the  civil  action  of  the  code. 
This  simply  required  a  statement  of  the  facts  on  which  he  conceived 
himself  entitled  to  a  recovery  of  monc}'  from  the  defendant.  The  peti- 
tion conformed  to  this  requirement,  and  stated  a  cause  of  action.  A 
prayer  for  relief  is  no  part  of  a  cause  of  action.  It  is  the  legal  conse- 
quences which  the  plaintiff  conceives  the  law  attaches  to  his  statement 
of  facts  ;  and  if  as  a  matter  of  law,  he  is  right,  his  petition  states  a 
:ause  of  action. '  Judgment  affirmed. 


McCLURE  :•.   LA  PLATA  COUNTY. 

Supreme  Court  of  Colorado,  September,   1896. 

[23   Colo.    130.] 

Campbell,  J. — In  1887  John  Reid  was  elected  county  treasurer  of 
La  Plata  county.  During  his  term  of  office  he  collected  taxes  belong- 
ing to  the  county,  some  of  which  were  not  accounted  for  bj-  him,  or 
turned  over  to  the  county  in  his  behalf.  In  1S90  he  died  intestate, 
leaving  property  which  came  into  the  hands  of  the  administrators  of 
his  estate,  who  were  appointed  and  qualified  as  such  in  March  of  that 
year. 

This  action  was  instituted  by  the  board  of  county  commissioners  in 
Januar5^  1892,  against  the  administrators,  to  recover  the  amount  of 
taxes  belonging  to  the  covmty  not  turned  over  to  it ;  and  additional 
relief  was  prayed  that  the  judgment  for  the  sum  found  to  be  due  should 
be  made  a  preferred  claim  against  the  property  that  had  come  into  the 
hands  of  the  administrators,  upon  the  ground  that  it  was,  in  part  at 
least,  the  proceeds  of  the  trust  funds  of  the  count}'." 

The  first  error  assigned  and  argued  is  that  this  action  was  instituted 
to  establish  a  trust  and  to  follow  the  trvist  funds  belonging  to  the  count}- 
into  the  hands  of  the  administrators,  and  to  compel  them  to  apply  such 
funds  to  the  satisfaction  of  plaintiff's  judgment,  before  satisfying  any 
other  claims  against  the  estate.  Failing  in  this,  it  is  said  that  the  court 
lo.st  jurisdiction  to  proceed  further,  and  to  do  so  would  change  the  char- 
acter of  the  action  from  one  in  equity  into  an  ordinary-  action  at  law  for 
the  recovery  of  a  money  judgment. 

1  Only  so  much  of  the  opinion  is  given  as  refers  to  this  oi.e  point. 

2  Part  of  the  opinion  is  omitted. 


158  EFFECT   IN   RELATION   TO  SUBSTANTIVE   LAW. 

This,  however,  is  a  misconception  of  the  character  of  the  action,  as 
well  as  an  error  as  to  the  scope  and  effect  of  our  code  procedure.  *If  the 
facts  set  forth  in  the  complaint  are  established  by  the  evidence,  any 
relief  to  which  the  plaintiff  is  entitled  should  be  given  by  the  court, 
regardless  of  the  prayer  for  relief.  Before  the  court, .  in  any  event, 
could  establish  a  lien  it  was  necessary  that  a  money  judgment  should 
be  rendered.  The  mere  fact  that  the  evidence  does  not  warrant  the 
court  in  following  the  trust  fund  and  impressing  upon  it  a  lien  does  not 
preclude  it  from  rendering  a  judgment  against  the  defendants  for  such 
sum  as  it  may  find  to  be  due.^  Affirmed. 


BRUCE  V.  FOLEY. 

Supreme  Court  of  Washington,  November  4.   1897. 

[18    Wash.  96.] 

Appeal  from  Superior  Court,  Pierce  County. 

Johnson  Nickeus,  for  appellant. 

Judson  Applegate  and  F.  G.  Merrill,  for  respondent. 

Gordon,  J. — At  the  trial,  the  defendant  introduced  the  record  of  a 
former  action  between  the  same  parties  involving,  we  think,  the  iden- 
tical subject  matter.  The  record  so  introduced  consisted  of  the  com- 
plaint, answer,  reply,  and  judgment  in  such  former  action,  coupled  with 
parol  proof  of  the  identity  of  the  parties,  etc.  Appellant  contends 
that  the  record  so  introduced  constituted  an  estoppel  and  bar  to  the 
maintenance  of  the  second  action,  and  that  the  verdict  found  against 
her  in  view  of  such  record  was  contrary  to  the  evidence  and  should 
have  been  set  aside. 

Respondent  further-  contends  that  the  judgment  in  the  former  suit 
constitutes  no  bar,  for  the  reason  that  it  was  a  suit  ip  equity,  M^hereas 
this  is  an  action  at  law. 

We  have  in  this  state  (as  in  most  code  states)  but  one  form  of  action 
for  the  enforcement  or  protection  of  private  rights  and  the  redress  of 
private  wrongs,  and  that  is  known  as  a  civil  action.^  Under  similar 
provisions  in  New  York  the  Court  of  Appeals  of  that  state  say  : — "  As 
the  courts  of  the  state  are  now  constituted,  they  apply  legal  and  equit- 
able rules  and  maxims  indiscriminately  in  every  case.  .  .  .  and  now 
when  an  action  is  prosecuted  we  inquire  whether,  taking  into  consider- 
ation all  the  principles  of  law  and  equity  bearing  upon  the  case,  the 
plaintiff  ought  to  recover."* 

It  is  conceded  by  counsel  that  the  issues  in  the  former  action  were 

1  Citing  Kayser  v.  Maugham,  8  Colo.  232  ;  Nevin  v.  Lulu  &  White  S.  M.  Co.,  10  Colo.  357. 

2  Part  of  the  statement  of  the  case  is  omitted, 

3  Hill's  Code,  I  109  (Bal.  Code,  g  47S3), 

4  New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co.,  14  N.  Y.  85. 


GARTNER    V.    CORWINE.  159 

tried  out  and  judgment  was  given  for  the  defendant  upon  the  merits. 
Such  being  the  case,  when  the  record  of  the  former  proceeding  was 
received  in  evidence  without  objection  thereto,  and  the  identity  of  the 
causes  of  action  and  the  parties  established,  it  constituted  in  law  a  com- 
plete bar  to  a  recovery  in  the  present  action,  and  the  verdict  and  judg 
ment  should  have  been  for  the  appellant.  It  was  therefore  c;rror  for  the" 
court  to  refuse  to  set  aside  the  verdict,  and  for  that  reason  the  judgment 
must  be  reversed  and  the  cause  remanded. 
Scott,  C.  J.,  and  Anders,  Reavis,  and  Dunbar,  JJ.,  concur.' 


GARTNER  v.   CORWINE. 

Supreme  Court  of  Ohio,  December  14,  1897. 

[57  O.  S.  246.] 

Error  to  the  Circuit  Court  of  Ross  County. 

The  case  is  suflSciently  stated  in  the  opinion. 

Frank  P.   Hmto7i,  for  plaintiff  in  error. 

C.  B.  Foster  and  W.  E.  Evans,  for  defendant  in  error.* 

Williams,  J. — Suit  was  brought  by  Corwine  against  Gartner  to 
recover  damages  for  breach  of  warranty  in  the  sale  of  a  horse.  The 
petition  alleges,  in  addition  to  the  warranty  and  its  breach,  that  the 
defendant  knew,  at  the  time  of  the  sale,  that  the  animal  was  not  what 
it  was  warranted  to  be.  On  the  trial  of  the  issues  joined  by  a  denial  of 
the  warranty  and  its  breach,  and  of  the  defendant's  knowledge  that  the 
warranty  was  false,  the  jury  was  instructed,  in  substance,  that  to  enti- 
tle the  plaintiff  to  a  verdict  in  the  case,  it  was  necessary  for  him  to 
prove,  by  a  preponderance  of  the  evidence,  that  the  defendant  knew  the 
warranty  was  false  in  some  material  particular,  or  had  reason  to 
believe  it  to  be  false.  The  judgment  rendered  on  the  verdict,  which 
was  for  the  defendant,  was  reversed  for  error  in  giving  the  foregoing 
instruction ;  and,  upon  the  question  concerning  which  the  'courts 
below  entertained  different  opinions,  the  case  has  been  ordered  to  be 
reported. 

The  contention  of  counsel  for  the  plaintiflF  in  error  appears  to  be,  that 
the  effect  of  the  averment  charging  the  defendant  with  knowledge  of 
the  falsity  of  the  warranty,  was  to  make  the  action  one  for  deceit  or 
fraud  ;  and,  therefore,  proof  of  such,  knowledge  was  essential  to  the 
plaintiff  's  right  of  recovery  ;  otherwise,  the  petition  would  include  two 
inconsistent  causes  of  action  which  could  not  be  joined.^ 

The  code  permits  a  plaintiff  to  state  the  facts  which  constitute  his 
cause  of  action  ;  and  when,  upon  any  of  the  facts  so  stated,  he  is  enti- 

1  Only  so  much  of  the  opinion  is  given  as  refers  to  the  one  point. 

2  The  arguments  are  omitted. 


160  EFFECT    IN    RELATION    TO   SUBSTANTIVE   LAW. 

tied  to  recover,  he  cannot  be  denied  that  right  because  he  has  alleged 
other  facts  that  he  is  unable  to  prove.  A  warranty  in  a  sale  of  chattel 
property  is  a  part  of  the  contract ;  and  the  warrantor  is  bound  by  it,  and 
answerable  in  damages  for  its  breach,  though  he  may  have  honestly 
believed  the  article  to  be  as  warranted.  But  the  representations  of  the 
seller  may  fall  short  of  an  express  warranty,  and  yet  may  be  such  as 
induce  the  purchaser  to  rely  upon  them,  and  entitle  him  to  redress 
against  the  seller  if  the  latter  knew  they  were  false,  or  recklessly  made 
them  without  reasonable  ground  for  believing  them  to  be  true.  And 
which  of  these  phases  of  his  case  the  purchaser  may  be  able  to  sustain 
by  proof,  can  only  be  determined  on  the  trial.  But  proof  of  either 
entitles  him  to  relief. 

And  it  is  competent,  we  think,  for  a  plaintiff  to  state  in  his  pleading 
all  the  facts  of  the  transaction  which  enter  into  his  right  to  recover,  as 
he  believes  them  to  be,  though  they  present  different  grounds  of  recov- 
ery, and  admit  of  different  modes  or  measures  of  relief;  and  he  may 
ultimately  have  that  relief  to  which  the  allegations  proved,  show  him 
entitled. 

The  petition  of  the  plaintiff  alleges  an  express  warranty  of  the  horse, 
and  a  breach  of  that  warranty  ;  and,  his  right  to  recover  the  damages 
resulting  from  that  breach  was  not  affected  by  the  allegation  of  the 
defendant's  knowledge  of  the  falsity  of  the  warranty.  The  latter  alle- 
gation did  not,  as  counsel  for  the  plaintiff  in  error  contends,  change  the 
action  to  one  exclusively  for  deceit,  nor  is  it  inconsistent  with  those 
upon  the  warranty  ;  they  may  all  be  true.  Whether  there  is  more  than 
one  cause  of  action  stated  in  the  petition,  is  a  question  upon  which  dif- 
ferences of  opinion  may  exist.  But  it  need  not  now  be  determined. 
If  there  are  two,  one  for  breach  of  the  warranty,  and  the  other  for  fraud, 
they  grew  out  of  the  same  transaction,  and  may  be  properly  joined  in 
the  same  petition  ;  and  no  motion  having  been  made  to  require  them  to 
be  separately  stated,  that  objection  to  the  petition,  if  it  were  open  to  it, 
was  waived  by  answer.  In  favor  of  the  view  that  there  is  but  one  cause 
of  action  stated,  it  may  be  said,  there  was  but  a  single  transaction 
between  the  parties — the  negotiations  resulting  in  the  sale  of  the  horse  ; 
there  was  but  one  wrong  of  the  defendant — the  sale  of  an  unsound  ani- 
mal as  and  for  a  sound  one  ;  and  there  is  but  one  right  of  the  plaintiff 
growing  out  of  the  wrong,  and  that  is,  to  have  redress  for  the  injury  he 
sustained  in  consequence  of  it,  and  for  which  he  can  have  but  one  recov- 
ery. And  a  statement  of  all  the  facts  of  the  transaction,  with  a  demand 
for  the  relief  desired,  as  one  cause  of  action,  seems  more  in  harmony 
with  our  reformed  system  of  pleading  than  a  repetition  of  them,  which 
becomes  necessary-,  in  part  at  least,  in  their  statement  as  separate  causes 
of  action.  But  in  either  event,  whether  the  petition  contains  but  one 
cause  of  action  or  two,  the  plaintiff,  upon  proof  of  the  warranty  and 
that  it  was  broken  to  his  damage,  was  entitled  to  a  verdict,  notwith- 
standing he  failed  to  establish  bj'  proof  the  defendant's  knowledge  that 


MENTZER    V.    THE    WESTERN    UNION    TELEGRAPH    CO.  161 

the  warranty  was  false  ;  and  as  this  right  was  denied  him  by  the 
instruction  given  to  the  jury,  the  reversal  of  the  judgment  for  that 
reason  was  not  error.  Judgment  affirmed. 


MENTZER  V.  THE  WESTERN  UNION  TELEGRAPH  COMPANY. 

Supreme  Court  or  Iowa,  February  9,  1895.  \/^ 

[93  Iowa  752.] 

This  is  an  action  at  law  to  recover  damages  from  defendant  for  negli- 
gently failing  to  deliver  a  telegram  notifying  plaintiff  of  the  death  of 
his  mother,  in  the  state  of  Ohio,  whereby  he  was  prevented  from 
attending  her  funeral.  There  was  a  trial  to  a  jury,  verdict  and  judg- 
ment for  plaintiff  for  the  sum  of  one  hundred  dollars,  and  defendant 
appeals. 

Mills  &  Keeler,  for  appellant. 

Hcins  &  Heins,  for  appellee. 

Deemer,  J. — There  was  testimony  tending  to  show,  and  the  jury 
may  well  have  found,  that  on   the  eleventh  day  of  April,    1892,   one 
H.  Dorn  delivered  to  the  defendant,  at  Creston,  Ohio,  to  be  transmitted 
to  plaintiff,  at  Cedar  Rapids,  Iowa,  the  following  telegraphic  message  : 
"Creston,    Ohio,    ir,    1892.     To  J.    D.   Mentzer,   Cedar  Rapids,   Iowa. 
Mother  dead.     Funeral   Wednesday.     Answer  if  coming  or  not.     H. 
Dorn. "     That  Dorn  paid  the  regular  charges  for  transmitting  the  same, 
and,  at  the  time  of  the  delivery  of  the  message,  informed  defendant's 
employe  in  charge  of  the  office  at  Creston  that  it  was  plaintiff's  mother 
who  was  dead.     That  the  message  reached  defendant's  office  at  Cedar 
Rapids  at  9  :  16  A.  m.,  April   11,  1892,  but  through  the  negligence  and 
carelessness  of  defendant's  employes,  was  not  delivered  until  9  p.  m., 
April  thirteenth.     The  plaintiff  inquired  at  defendant's  office  at  Cedar 
Rapids  at  about  seven  o'clock  in  the  evening  of  April  eleventh,  and 
was  informed  there  was  nothing  there  for  him.     It  is  shown  beyond  dis- 
pute that  plaintiff's  mother  died  at  Creston,  Ohio,  on  April  11,  1S92, 
and  was  buried  on  the  thirteenth,  and  that,  by  reason  of  the  failure  of 
defendant  to  deliver  the  message  informing  plaintiff  of  her  death,  he 
was  prevented  from  attending  her  funeral.     There  was  also  testimony 
tending  to  show  that  plaintift'  lost  some  time  from  his  work,  in  trying 
to  discover  whether  a  message   had  been  sent  him  or  not.     The  court 
gave  the  jury  the  following  instruction  with  reference  to  the  measure 
of  damages,  in  the  event  they  found  plaintiff  entitled  to  recover  :    "  (7) 
If  you  find   for  plaintiff,  then  you  will  allow  him  for  the  amounts  he 
paid  for  messages  sent  by  him,  if  any  ;  for  loss  of  time  caused  by  the 
failure  to  deliver  said  message,  and  rendered  useless  thereby,  if  any  ; 
and,  in  addition  thereto,  such  an  amount  as  3-ou  may  find  from  the  evi- 


162  EFFECT    IN    RELATION   TO    SUBSTANTIVE    LAW. 

dence  to  be  just  and  reasonal^le  to  compensate  plaintiff  for  the  damages 
sustained  by  reason  of  mental  anguish  suffered  by  him  by  reason  of 
failure  to  deliver  said  message,  if  any.  But  you  should  not  allow 
plaintiff  anything  for  loss  of  time  or  expense  in  going  to  Creston,  Ohio, 
nor  should  you  allow  plaintiff  for  the  money  paid  by  Dorn  for  the  mes- 
sage in  question. " 

It  is  conceded  by  appellant's  counsel  that  plaintiff  suffered  damages 
under  the  first  two  heads  covered  by  the  instruction,  to  the  amount  of 
one  dollar,  and  no  complaint  is  made  of  the  charge,  so  far  as  it  relates 
to  these  two  items.  The  objection  to  the  instruction  is  that  it  allows 
the  jury  to  assess  damages  for  "  mental  anguish,  "  and  it  is  contended 
that  such  damages  are  not  allowable  in  actions  of  this  kind.  Counsel 
also  insists  that,  if  such  damages  are  recoverable  in  any  case,  they 
should  not  be  allowed  here,  for  the  reason  that  the  testimony  negatives 
any  such  suffering  on  the  part  of  the  plaintiff  as  would  entitle  him  to 
recover.  Disposing  of  this  last  proposition  first,  we  have  to  say  that 
there  is  sufficient  testimony  on  the  record  to  justify  the  conclusion  that 
the  plaintiff  did  suffer  as  claimed.  The  evidence  discloses  such  con- 
duct on  the  part  of  plaintiff  in  inquiring  for  a  message  at  the  ofi&ce  of 
the  defendant  company,  and  in  the  efforts  put  forth  by  him  to  ascertain 
if  a  death  message  had  come,  as  to  evince  mental  anxiety.  Plaintiff 
says  he  was  desirous  of  attending  his  mother's  funeral,  and  that  he  felt 
' '  hard  ' '  because  of  the  delay  in  the  delivery  of  the  message.  He  imme- 
diately telegraphed  to  ascertain  if  he  could  be  present  at  the  funeral, 
and  took  up  his  journey  to  Ohio,  to  be  in  attendance  upon  the  burial. 
When  he  called  at  defendant's  ofiice,  after  the  receipt  of  the  message, 
he  was  excited  and  anxious.  He  complained  of  the  delay,  and  wanted 
to  know  why  the  message  was  not  delivered  at  his  house.  We  think 
these  declarations,  and  this  course  of  conduct,  clearlj^  indicate  that 
plaintiff  did  suffer  as  charged.  We  have,  then,  the  question  as  to 
whether  damages  for  mental  suffering  can  be  recovered  in  actions  of 
this  kind,  independent  of  any  physical  injury,  where  the  company  is 
advised  of  the  character  of  the  message,  and  negligently  fails  to  deliver 
it.  This  question  has  been  variously  decided  by  the  different  courts  of 
the  country,  but,  up  to  this  time,  is  an  open  one  in  this  state.' 

The  general  rule  which  has  come  down  to  us  from  England,  no  doubt, 
is  that  mental  anguish  and  suffering  resulting  from  mere  negligence, 
unaccompanied  with  injuries  to  the  person,  cannot  be  made  the  basis  of 
an  action  for  damages." 

And  doubtless  this  is  the  rule  of  law  to-day  in  all  ordinary  actions, 
either  ex  contractu  or  ex  delicto.  But  it  must  be  remembered  that  there 
are  exceptions  to  the  rule,  and  that  the  telegraph,  as  a  means  of  convej- 
ing  intelligence,  is  comparatively  a  new  invention.  The  general  rule 
above  referred  to  was  adopted  long  before  the  electric  current  was  har- 

Part  of  the  opinion,  citing  cases  on  this  question  of  substantive  law,  is  omitted. 
See  Lynch  v.  Knight,  2  H.  L-  Cas.  577  ;  Hobbs  v.  Railroad  Co.,  L-  R-  10  Q.  B.  122. 


MENTZIiK    Z'.  TIIK    WKSTKKN    UNION   TELEGRAPH    CO.  IGu 

nessed  cind  made  subservient  to  the  will  of  man.  One  of  the  crowning 
glories  of  the  common  law  has  been  its  elasticity,  and  its  adaptability 
to  new  conditions  and  new  states  of  fact.  It  has  grown  with  civiliza- 
tion, and  kei)t  pace  with  the  march  of  events,  so  that  it  is  as  virile 
to-day,  in  our  advanced  state  of  civilization,  as  it  was  when  the  race 
was  emerging  from  the  dark  ages  of  the  past.  Should  it  ever  fail  to  be 
adju.stable  to  the  new  conditions  which  age  and  experience  bring,  then 
its  usefulness  is  over,  and  a  new  social  compact  must  be  entered  into. 

Let  us  look  at  this  querj-,  then,  upon  principle  and  see  if  such  dam- 
ages are  recoverable.  And  first  we  must  determine  the  nature,  object, 
and  purposes  of  telegraph  companies  ;  their  legal  status  and  duties  to 
the  public,  and  to  those  with  whom  they  do  business  ;  then  the  nature 
of  the  action  ;  and,  finally,  the  elements  of  damage  which  may  be 
recovered,  either  by  reason  of  their  breach  of  contract  or  because  of 
their  failure  to  perform  their  duties, — and  see  if  there  is  any  reason 
known  to  and  recognized  by  the  law,  why  such  damages  should  not  be 
allowed.  Far  be  it  from  our  purpose  to  make  law.  We  cannot  legis- 
late, but  will  discover,  if  we  can,  whether  there  are  any  precedents  for 
recovery  lying  in  the  ashes  of  the  past. 

What,  then,  is  the  nature,  purpose,  and  object  of  the  telegraph,  and 
what  is  its  legal  status  ?  It  is  a  system  of  appliances  conducting  the 
electric  current  or  fluid,  used  for  the  purpo.se  of  transmitting  intelli- 
gence, thought,  or  news  from  one  place  to  another.  Somewhat  akin  is 
it  to  a  common  carrier,  in  this  :  that  they  are  both  carriers,  and  must 
serve  all  alike ;  but  the  carrier  transports  persons  or  goods,  while  the 
telegraph  conveys  intelligence.  The  very  object  of  the  invention  is  to 
quickly  convey  information  from  one  to  another,  upon  which  that  other 
may  act.  It  is  a  public  use,  and  for  that  reason  eminent  domain  may 
be  exercised  in  its  behalf,  and  is  engaged  in  a  business  affecting  public 
interests  to  such  an  extent  that  the  state  may  regulate  the  charges  of 
the  companies  engaged  in  the  business.  It  is  not  an  insurer  of  the 
accuracy  or  of  the  delivery  of  messages  intrusted  to  it,  but  it  is  so  far  a 
common  carrier  as  to  be  bound  to  serve  all  people  alike,  and  to  exercise 
due  care  in  the  discharge  of  its  public  duties.  Nor  can  it  provide  by 
contract  for  exemption  from  liability  from  the  consequences  of  its  own 
neo-ligence.  Enough  has  been  stated  to  show  that  it  owes  a  duty  to  all 
whom  it  attempts  to  serve,  independent  of  the  contractual  one  entered 
into  when  it  receives  its  messages.  Telegraph  companies  are  held, 
then,  to  the  exercise  of  due  care,  and  for  negligence,  either  in  sending 
or  delivering  messages,  are  liable  to  any  person  injured  thereby  for  all 
the  damages  he  may  sustain.  We  have  stated  these  rules  in  order  to 
show  that  one  who  is  injured  by  their  neglect  of  dut}'  may  maintain  an 
action,  either  e.v  contractu  or  ex  delicto,  for  the  injuries  sustained.  The 
rule,  no  doubt,  is  as  announced  b}-  Judge  Cooley  in  his  work  on  Torts, 
at  page  104  et  seq. :  "  In  many  cases  an  action,  as  for  tort,  or  an  action 
for  a  breach  of  contract,  maj-  be  brought  by  the  same  party  on  the  same 


164  EFFECT   IN   RELATION   TO  SUBSTANTIVE   LAW. 

state  of  facts.  This,  at  first,  may  seem  in  contradiction  to  the  definition 
of  a  tort  as  a  wrong  unconnected  with  a  contract,  but  the  principles 
which  sustain  such  actions  will  enable  us  to  solve  the  seeming  difii- 
culty.  .  .  .  There  are  also,  in  certain  relations,  duties  imposed  bylaw, 
a  failure  to  perform  which  is  regarded  as  a  tort,  though  the  relations 
themselves  may  be  formed  b}^  contract  covering  the  same  ground.  .  .  . 
Thus,  for  breach  of  the  general  duty  imposed  b}-  law  because  of  the 
relation,  one  form  of  action  may  be  brought,  and  for  the  breach  of  con- 
tract another  form  of  action  may  be  brought.  "  * 

In  this  state  all  forms  of  action  are  abolished.  The  pleader  simply 
makes  a  plain  statement  of  the  facts,  avoiding  legal  conclusions,  and 
may  recover  as  damages,  on  the  facts  stated,  whatever  the  law  will 
allow,  either  for  breach  of  contract  or  for  the  tort  pleaded.  We  desire 
to  make  this  plain,  for  if,  in  the  further  progress  of  the  opinion,  it 
should  appear  that  damages  for  mental  suffering  are  allowed  in  cases  of 
this  kind,  either  for  breach  of  contract  or  for  tort,  then  plaintiff"  may 
recover.  With  this  thought  in  mind,  the  reader  may  also  be  able  to 
explain  and  reconcile  some  of  the  cases  before  cited.   .   .   . 

In  the  case  of  Stevenson  v.  Belktiap,  6  Iowa,  103,  which  was  an  action 
brought  by  a  father  for  the  seduction  of  his  daughter,  this  court 
approved  an  instruction  that  damage  may  be  given,  not  only  for  his 
loss  of  service  and  actual  expenses,  but  also  on  account  of  the  wounded 
feelings  of  the  plaintiff",  and  of  his  anxiety,  as  a  parent  of  other  chil- 
dren, whose  morals  ma}'  be  corrupted  by  the  example.  In  the  case  of 
McKinley  v.  Railroad  Co.,  44  Iowa,  314,  which  was  an  action  for  an 
assault  by  one  of  the  defendant's  employes  upon  the  plaintiff",  the  lower 
court  instructed  the  jury  that  the  plaintiff"  might  recover,  as  compen- 
satory damages,  not  only  for  bodily  pain  and  suff"ering,  but  for  the  outs 
rage  and  indignit}^  put  upon  him.  This  instruction  was  approved,  and 
it  was  held  that  mental  suff"ering  not  arising  from  bodily  pain,  but 
from  the  nature  of  the  assault,  might  be  recovered,  the  court  using  this 
language  :  "  The  question  is  fairly  presented  whether  mental  anguish, 
arising  from  the  nature  and  character  of  the  assault,  constitutes  an 
element  of  compensatory  damages.  .  .  .  We,  on  principle,  are  unable 
to  see  why  mental  pain  arising  from  or  caused  by  the  nature  of  the 
assault  whereby  the  wound  was  inflicted  .  .  .  should  not  be  an  ele- 
ment of  such  damages."  "A  careful  examination  of  the  authorities 
will  disclose  the  fact  that  the  weight  of  adjudicated  cases  is  in  favor  of 
the  proposition  that  mental  anguish  arising  from  the  nature  and  char- 
acter of  the  assault  is  an  element  of  compensatory  damages.  .  .  .  The 
mind  is  no  less  a  part  of  the  person  than  the  body,  and  the  suff"erings 
of  the  former  are  sometimes  more  acute  and  lasting  than  those  of  the 
latter."  It  may  also  be  said  in  this  connection  that  the  court  in  this 
case  decline  to  follow  the  case  oi Johnson  v.  Wells,  Fargo  &  Co.,  6  Nev. 

1  See  also,  Rich  v.  Railroad  Co.,  87  N.  Y.  382  ;  Nevin  v.  Pullman  Car  Co.,  106  111.  222 ;  Rail- 
way Co.  V.  Kemp,  61  Md.  619  ;  Cooley,  Torts,  p.  3. 


MENTZER   r.  THE   WESTERN   UNION    TELEGRAPH    CO.  165 

224,  and  kindred  cases,  which  are  relied  upon  by  appellant's  counsel, 
remarking  that  ' '  the  decided  weight  of  authority  is  opposed  to  the  view 
taken  in  that  case,  and  we  are  unwilling  to  follow  it,  and  by  so  doing 
ignore  the  other  authorities  cited."  That  the  question  was  well  con- 
sidered and  deliberately  decided  is  apparent  from  the  fact  that  Ur.  Jus- 
tice Day  dissented  from  the  conclusion  of  the  majority.  In  the  quite 
recent  case  of  Shepard  v.  Railway  Co.,  77  Iowa,  58,  41  N.  W.  Rep.  564, 
we  went  still  further,  and  squarely  held  that  damages  for  mental  suffer- 
ing are  recoverable,  although  there  was  no  physical  pain  or  injury.  In 
that  case  we  said  :  "  If  these  things  (wounded  feelings)  may  be  con- 
sidered in  connection  with  physical  suffering,  in  estimating  actual 
damages,  we  know  no  reason  which  forbids  their  being  considered  in 
the  absence  of  physical  suffering.  It  is  said  that  the  '  mental  pain  ' 
contemplated  by  the  court  in  the  case  last  cited  (44  Iowa,  314)  includes 
something  more  than  mere  wounded  feelings  or  wounded  pride,  and 
that  the  latter  can  be  considered  only  where  malice  is  alleged  and 
proven,  and  where  there  has  been  proof  of  actual  bodily  injury.  We 
do  not  think  the  claiiu  is  well  founded.  Humiliation,  wounded  pride, 
and  the  like  may  cause  very  acute  mental  anguish.  The  suffering 
caused  would  undoubtedly  be  different  in  different  persons,  and  no  exact 
rule  for  measuring  it  can  be  given.  In  ascertaining  it,  much  must 
necessarily  be  left  to  the  discretion  of  the  jury,  as  enlightened  by  the 
charge  of  the  court.  The  charge  given  in  this  case,  as  a  whole,  con- 
fined the  jury  to  an  allowance  for  compensatory  damages."  In  the 
case  of  Ctirtis  v.  Railway  Co.,  87  Iowa,  622,  54  N.  W.  Rep.  339,  this 
court  squarely  held  that  damages  might  be  recovered  for  mental  pain 
and  suffering,  although  the  damages  for  physical  injury  were  merely 
nominal  ;  and  further  held  that  such  damages  were  compensatory,  and 
not  punitive.  In  the  case  of  Parkhurst  v.  Masteller,  57  Iowa,  480.  10 
N.  \V.  Rep.  864,  which  was  an  action  for  malicious  prosecution,  this 
court  followed  the  McKitiley  case,  and  held  that  in  such  actions  actual 
damages  would  include  compensation  for  bodily  and  mental  suffering, 
and  clearly  held  that  damages  for  mental  suffering  might  be  recovered 
in  such  cases  although  entirely  disconnected  from  bodily  suffering  or 
disability.  In  a  case  of  assault  and  batten,-, ^  this  court  held  that  dam- 
ages for  mental  anguish  might  be  allowed  as  compensation.  In  the 
case  of  Paiyie  v.  Railway  Co.,  45  Iowa,  569,  the  rule  in  the  McKinley 
case  was  recognized  ;  but  it  was  held  there  was  no  right  of  recovery 
for  injury  to  feelings,  on  account  of  the  peculiar  facts  of  that  case. 
And  the  case  of  Fitzgerald  v.  Railway  Company,  50  Iowa,  79,  merely 
follows  the  Paine  case,  and  holds  that,  under  the  facts,  plaintiff  was 
not  entitled  to  recover.  The  rule  of  the  McKinley  case  has  never,  to 
our  knowledge,  been  doubted  by  any  later  decision.  In  the  case  of 
Stone  V.  Railroad  Co7npany,  47  Iowa,  88,  it  was  held  that  the  action  in 
that  case,  owing  to  its  peculiar  facts,  was  an   action   for  breach  of  con- 

1  Lucas  V.  Flint!,  35  Iowa,  9. 


16G  EFFECT   IN    RELATION   TO   SUBSTANTIVE   EAW. 

tract ;  and  that  damages  for  mental  suffering  were  not  recoverable,  and 
in  this  case  it  is  said  :  "  Insult  and  abuse  accompanying  a  breach  of 
contract  cannot  affect  the  amount  of  recovery  in  such  actions.  If  the 
action  is  based  upon  a  wrong,  the  jury  are  permitted  to  consider  injury 
to  feelings,  and  many  other  matters  which  have  no  place  in  actions  to 
recover  damages  for  breach  of  contracts."  ^  It  is  enough  to  say  here 
that  the  action  at  bar  is  ex  delicto,  or  that  damages  may  be  recovered  as 
if  it  were,  under  our  system  of  code  pleading. 

The  only  other  case  having  any  bearing  upon  this  question  is  Hall  v. 
Incorporated  Town  of  Manson,  90  Iowa,  585,  58  N.  W.  Rep.  8S1,  which 
was  a  case  wherein  plaintiff  sought  to  recover  damages  for  personal 
injuries  sustained  by  reason  of  a  defective  street  crossing.  The  lower 
court  instructed  the  jury  that  plaintiff  might  recover  "for  the  peril,  if 
any,  the  jury  may  find  she  was  subjected  to,  from  the  evidence  in  the 
case."  This  court  disapproved  the  instruction,  not  because  damages 
for  mental  anguish  could  be  recovered,  but  because,  ' '  in  our  view  of  the 
instruction,  its  wording  would  warrant  the  jury  in  allowing  damages 
for  mental  pain  and  suffering  which  would  include  peril,  and  also  for 
peril,  as  a  distinct,  independent,  and  additional  element  of  damage, 
thereby  allowing  double  compensation  for  the  peril  plaintiff  was  in, 
which  would  be  erroneous." 

From  these  cases  it  is  apparent  that  in  actions  of  tort  this  court  has 
frequently  announced  the  rule  that  damages  for  mental  suffering  may 
be  recovered,  although  there  is  no  physical  injury.  And,  if  this  be  so, 
why  is  not  this  a  case  where  they  ought  to  be  allowed  ?  It_caj]not  J^e 
possible  that  here  is  a  legal  wrong  for  which  the  law  affords  no  remedy- 
The  wrong  is  plain,  the  injury  is  apparent,  and  we  think  the  law 
affords  a  remedy,  for  compensatory  damages,  under  the  rules  above 
given.  It  must  not  be  understood  to  follow  that,  in  all  actions  ex 
delicto,  damages  for  mental  suffering  may  be  allowed.  There  must  be 
some  direct  and  proximate  connection  between  the  wrong  done  and  the 
injury  to  the  feelings,  to  justify  a  recovery  for  mental  angui-sh.  But, 
when  this  connection  is  so  manifest  as  in  the  case  at  bar,  we  think  such 
damages  ought  to  be  allowed.  It  is  very  appropriately  said,  however, 
in  one  of  the  cases  which  has  been  cited,  that  "  great  caution  should  be 
used  in  the  trial  of  cases  like  this,  as  it  will  be  so  easy  and  natural  to 
confound  the  corroding  grief  occasioned  by  the  loss  of  a  parent  or  other 
relative  with  the  disappointment  and  regret  occasioned  by  the  fault  or 
neglect  of  the  company,  for  it  is  only  the  latter  for  which  recovery  may 
be  had  ;  and  the  attention  of  juries  might  well  be  directed  to  this  fact. " 
It  is  not  necessary  for  us  to  determine  on  which  theory  damages  for 
mental  anguish  are  recoverable.  If  we  find  thev  are  recoverable,  either 
in  for  breach  of  contract,  or  by  reasonofa^fpnrh  f?^p1l^"'^'^di]tY 


tlien  the  instruction  pjven  bv  the  lower  court  was  corrects  and  shxmld 
be  sustained.     It  will  be  noticed  that,  in  some  of  the  cases  holding  to  a 


1  Citing  Walsh  v.  Railway  Co.,  42  Wis.  23. 


TUKNER   V.    STALLUiRASS.  167 

contrary  doctrine  from  that  here  announced,  recovery  was  denied 
because  of  the  form  of  action  ;  that  is  to  say,  it  was  held  that  the  action 
in  the  particular  case  was  for  breach  of  contract,  and  that  damages  for 
mental  suffering  were  not  recoverable  in  such  an  action.  Whether  the\i 
would  be  recoverable  in  actions  ex-  delicto  or  not  was  not  determined.  ^ 

Judgment  affirmed ^ 


TURNER  V.  STALLIBRASS. 

Court  of  Appeal,  November  22,   1897. 

[(1898)   I  Q.  B.  56.] 

Appeal  from  an  order  of  a  judge  at  chambers  as  after-mentioned. 

The  action  was  brought  to  recover  damages  in  respect  of  injury-  to  a 
horse  belonging  to  the  plaintiflf.  The  statement  of  claim  alleged  that 
the  plaintifFdelivered  to  the  defendants  ahorse,  the  property  of  the  plain- 
tiff, to  be  agisted,  kept,  and  taken  care  of  by  the  defendants  in  consid- 
eration of  a  payment  of  one  shilling  a  day  by  the  plaintiff  to  the 
defendants  ;  and  the  defendants  promised  the  plaintiff  in  consideration 
of  the  premises  to  safely  keep,  agist,  and  take  care  of  the  said  horse ; 
and  that  in  breach  of  the  said  contract  the  defendants  did  not  safely 
keep,  agist,  and  take  care  of  the  said  horse,  but  negligently  erected  in 
the  field  in  which  the  said  horse  was  turned  out  a  low  wire  fence,  and 
negligently  permitted  the  grass  to  grow  so  as  to  hide  the  said  wire 
fence,  whereby  the  plaintiff's  horse  was  injured.  Alternatively',  the 
statement  of  claim  alleged  that  the  defendants  in  breach  of  their  con- 
tract negligently  allowed  the  said  horse  to  be  kept  and  remain  in  a  field 
containing  the  said  wire  fence  so  concealed  as  aforesaid,  whereby  the 
plaintiff  's  horse  was  injured. 

It  appeared  at  the  trial  that  the  plaintiflf  had  delivered  the  horse  in 
question  to  the  defendants  for  agistment,  and  that  the  horse  had  been 
placed  in  a  field  where  there  was  a  barbed  wire  fence  concealed  bj-  long 
grass,  through  which  injury  had  been  occasioned  to  the  horse.  The 
learned  judge  left  it  to  the  jury  to  say  whether  it  was  negligent  on  the 
part  of  the  defendants  to  put  the  horse  in  a  field  where  there  was  such 
a  fence  as  that  in  question.  The  jury  found  for  the  plaintiflf  for  30/. 
damages.  The  master  held  on  taxation  that  the  plaintiff  was  entitled 
to  the  costs  of  the  action  on  the  High  Court  scale  ;  but  on  appeal  the 
judge  reversed  his  decision,  holding  that  the  action  was  one  founded  on 
contract  within  the  meaning  of  s.  116  of  the  County  Courts  Act,  1888, 
and  therefore  the  plaintiflf  was  only  entitled  to  costs  on  the  county  court 
scale. 

1  KiNNE,  J.,  dissented,  holding  that  the  general  rule  that  damages  are  not  recoverable 
for  mental  pain  and  suffering  should  govern  the  case  at  bar.  The  reasoning  of  both  the 
majority  and  the  dissenting  opinion  on  this  point  of  substantive  law  is  omitted. 


168  EFFECT    IN    RELATION   TO   SUBSTANTIVE    LAW. 

T.   Willes  Oiitty,  for  the  plaintiff. 
Lyttelton,  for  the  defendants. 

A.  L.  Smith,  L.  J.— ^  I  am  of  opinion  that  this  is  an  action  founded  on 
tort  within  the  meaning  of  s.  ii6  of  the  County  Courts  Acts,  1888. 
The  rule  of  law  on  the  subject,  as  I  understand  it,  is  that,  if  in  order  to 
make  out  a  cause  of  action  it  is  not  necessary-  for  the  plaintiff  to  rely  on 
a  contract,  the  action  is  one  founded  on  tort ;  but,  on  the  other  hand, 
if,  in  order  successfully  to  maintain  his  action,  it  is  necessary  for  him 
to  rely  upon  and  prove  a  contract,  the  action  is  one  founded  upon  con- 
tract. The  question  is  under  which  class  the  present  action  falls.  It 
was  held  in  Bryaiit  v.  Herbert-  that  for  this  purpose  the  form  of  the 
action  as  stated  in  the  pleadings  is  immaterial.  In  my  opinion  the  way 
in  which  the  plaintiff 's  counsel  opened  his  case  at  the  trial  is  equally 
immaterial ;  and,  if  it  be  material  to  consider  how  the  judge  directed 
the  jury,  in  this  case  it  is  clear  that  he  directed  them  substantially  as 
if  the  action  were  one  of  tort,  not  of  contract  ;  for  he  asked  them 
whether  it  was  an  unreasonable  or  negligent  thing  to  have  such  a  fence 
as  this  in  a  field  in  which  cattle  were  kept.  The  question  is  whether 
upon  the  facts  of  the  case  this  was  an  action  which  could  be  maintained 
without  relying  on  the  contract  of  agistment.  I  think  that  the  plaintiff 
shewed  a  good  cause  of  action  by  proving  a  bailment  on  which  a  duty 
arose  at  common  law  on  the  part  of  the  defendants  not  to  be  negligent 
in  respect  of  the  plaintiff  's  horse,  independently  of  any  contract,  and 
breach  of  that  duty.  On  that  short  ground  I  think  this  was  an  action 
founded  on  tort  within  the  meaning  of  the  enactment  of  the  County 
Courts  Act,  1888,  as  to  costs.  For  these  reasons  I  think  the  appeal 
must  be  allowed. 

RiGBY,  L.  J. — I  am  of  the  same  opinion.  The  enactment  on  which 
this  case  depends  divides  actions  into  two  classes  for  the  purpose  of  dis- 
criminating between  them  with  regard  to  costs,  namely,  actions  founded 
on  contract  and  actions  founded  on  tort.  The  question  whether  an 
action  falls  within  one  class  or  the  other  depends  on  the  facts  of  the 
case,  not  on  the  form  in  which  the  action  is  brought.  It  has  long  ago 
been  settled  that  the  form  of  the  pleadings  is  for  this  purpose  imma- 
terial. The  rule  is  that,  if  the  plaintiff,  in  order  to  shew  a  cause  of 
action,  must  rely  on  a  contract,  the  action  is  one  founded  on  contract ; 
otherwise  it  is  one  of  tort.  I  think  that  in  this  case  the  plaintiff  was 
not  obliged  to  rely  on  a  contract,  and  therefore  the  action  must  be 
treated  -as  one  founded  on  tort. 

Collins,  L,.  J. — I  am  of  the  same  opinion.  I  think  some  confusion 
may  possibly  arise  from  the  expression  of  the  rule  on  this  subject  as 
being  that  the  test  is  whether  the  plaintiff  is  obliged,  in  order  to  main- 
tain his  action,  to  rely  on  a  contract.  The  relation  of  bailor  and  bailee 
must  arise  out  of  some  agreement  of  the  minds  of  the  parties  to  it ;  but 

1  The  arguments  are  omitted. 

2  3  C.  P.  D.  389. 


TURNER    v.    STALLIliKASS.  169 

that  agreement  of  minds  is  not  the  contract  contemplated  by  that  mode 
of  expressin.2:  the  rule  to  which  I  refer.  Such  an  agreement  of  minds 
is  presupposeil  in  the  case  of  any  relation  which  brings  about  the  com- 
mon law  liability  of  a  bailee  to  his  bailor.  Where  such  a  relation  is 
established,  the  result  of  the  cases  appears  to  be  that,  if  the  plaintiff  can 
maintain  his  action  by  showing  the  breach  of  a  duty  arising  at  common 
law  out  of  that  relation,  he  is  not  obliged  to  rely  on  a  contract  within 
the  meaning  of  the  rule  ;  but,  if  his  cause  of  action  is  that  the  defend- 
ant ought  to  have  done  something,  or  taken  some  precaution,  which 
would  not  be  embraced  by  the  common  law  liability  arising  out  of 
the  relation  of  bailor  and  bailee,  then  he  is  obliged  to  rely  on  a  con- 
tract within  the  meaning  of  the  rule.  A  distinction  has  been  drawn 
between  acts  of  misfeasance  and  non-feasance  which  has  given  rise  to 
some  difficulty  ;  but  it  seems  to  me  that,  whether  the  matter  complained 
of  is  one  of  misfeasance  or  non-feasance,  the  question  really  is  whether 
it  is  embraced  within  the  ambit  of  the  common  law  liability  arising  out 
of  the  relation  between  bailor  and  bailee.  If  it  is,  then  the  plaintiff  is 
not  driven  to  rely  on  a  contract  within  the  meaning  of  the  rule  on  the 
subject  of  costs.  But,  if  it  is  not,  then  the  plaintiff  must  rely  on  a 
contract  in  order  to  shew  a  cause  of  action,  and  the  action  is  there- 
fore one  founded  on  contract.  In  the  present  case  it  is  quite  clear  that 
the  duty  upon  a  breach  of  which  the  action  was  founded  was  one  which 
arose  at  common  law  simply  out  of  the  relation  of  bailor  and  bailee, 
and  therefore  the  plaintiff  was  not  driven  to  rely  on  the  contract.  I 
quite  agree  that  this  question  does  not  depend  on  the  form  of  the  plead- 
ings ;  but  the  case  of  Corbett  v.  Packington,  ^  which  was  decided  at  a 
time  when  it  was  essential  that  the  pleader  should  accurately  state  the 
cause  of  action,  illustrates  what  I  have  said  with  regard  to  the  distinc- 
tion between  the  liability  arising  at  common  law  out  of  the  relation 
of  bailor  and  bailee,  and  any  further  liability  arising  on  the  terms  of 
the  contract  of  bailment.  It  was  held  in  that  case  that  a  count  alleging 
that  the  plaintiff  had  delivered  certain  boars  and  pigs  to  the  defendant 
to  be  taken  care  of  for  reward,  and  that  the  defendant  had  in  consider- 
ation thereof  agreed  with  the  plaintiff  to  take  care  of  them,  and  rede- 
liver the  same  to  the  plaintiff  on  request,  was  a  count  in  assumpsit,  and 
could  not  therefore  be  joined  with  counts  in  case,  because  the  alleged 
obligation  to  redeliver  the  pigs  went  bej^ond  the  common  law  duty  of 
the  defendant  as  bailee,  and  could  only  arise  out  of  the  contract. 

Appeal  allowed. 

1  (1827)  6  B.  &  C.  268. 


170  EFFECT   IN    RELATION   TO    SUBSTANTIVE    LAW. 

JACOBSON  :'.  BROOKLYN  ELEVATED  RAILROAD  COMPANY. 

Supreme  Court  of  New  York,  Special  Term,  January  22,  1898. 

[48  N.   Y.  Supp.  1072.] 

Action  by  Arthur  C.  Jacobson  individually,  and  himself  and  another, 
as  executors  of  the  last  will  of  Mary  Jacobson,  against  the  Brooklyn 
Elevated  Railroad  Company  and  others,  for  an  assessment  of  damages, 
and  for  an  injunction  unless  such  damages  be  paid.  As  to  the  execu- 
tors, sent  to  the  jury  calendar.  As  to  the  plaintiff  Jacobson  individually, 
judgment  against  defendants. 

Stephen  M.  Hoye,  for  plaintiff. 

Alex.  S.  Lyman,  for  defendant. 

Gaynor,  J. — Counsel  for  the  company  moved  before  any  witness  had 
been  sworn,  and  again  at  the  close  of  the  evidence,  that  the  claim  for 
damages  for  loss  of  rents  which  accrued  prior  to  September  12,  1896, 
when  the  plaintiff  Jacobson  got  title  by  devise  from  his  mother,  be  sent 
to  the  jury  calendar  for  trial,  and  that  the  court  try  in  equit}^  only  the 
case  of  the  said  owner.  Upon  the  death  of  the  said  mother  her  claim 
for  damages  passed  to  her  executors.  They  have  no  interest  in  restrain- 
ing the  maintenance  and  operation  of  the  road.  Their  claim  is  discon- 
nected from  the  land,  and  is  the  basis  for  a  common-law  action  for 
damages  only.  On  the  other  hand,  the  mother's  devisee  (the  plaintiff 
Jacobson)  had  a  separate  claim  for  damages  since  he  became  owner,  and 
also  a  right  of  action  to  restrain  the  future  maintenance  and  operation 
of  the  road  ;  but  he  has  a  standing  in  equity  to  have  his  damages  found 
and  to  obtain  relief  by  injunction  at  the  same  time.*  Two  distinct 
causes  of  action,  viz.,  that  of  the  present  owner  and  that  of  the  execu- 
tors of  the  former  owner,  are  therefore  improperly  united.  But  the 
defendant  cannot  take  this  objection  for  not  having  pleaded  it."  Nor 
has  it  pleaded  that  the  executors  have  an  adequate  remedy  at  law. 
But  it  was  not  required  to  do  this,  for  the  complaint  docs  not  disclose 
their  true  position  of  having  only  a  legal  cause  of  action,  but  on  the 
contrary  it  alleges  that  thej^  with  the  other  plaintiff  (Jacobson)  are  the 
owners.  It  does  not  disclose  that  the  plaintiff  Jacobson  became  the 
sole  owner  in  1896  as  devisee  of  their  testator.  The  complaint  thus 
states  a  good  suit  in  equity  only.  In  such  a  case  the  defendant  never 
had  to  plead  that  the  plaintiffs,  or  any  of  them,  had  an  adequate  remedy 
at  law,  in  order  to  oust  chancery  of  jurisdiction.  On  the  contrary, 
when  the  proof  showed  that  instead  there  was  only  a  common-law 
action,  it  was  in  time  to  take  the  objection  to  the  jurisdiction  of  chan- 

1  Cogswell  V.  Railroad  Co.,  103  N.  Y.  10  ;  8  N.  E.  537.     Infra. 

2  Citing  Code  Civ.  Pro.  §§498,  499,  which  provide  zwfer  c//a,  that  if  the  objection  that 
causes  of  action  have  been  improperly  united  is  not  taken  either  by  demurrer  or  answer,  it 
shall  de  deemed  to  be  waived. 


LECK   V.    KUDU.  171 

eery  then,  and  the  suit  had  to  be  dismissed. i  But  that  motion  has  not 
been  made  here  in  respect  of  the  executors,  and  we  therefore  have  the 
precise  question  to  decide,  viz.,  whether  the  action  must  be  severed, 
and  the  claim  of  the  executors  sent  to  the  jury  calendar,  for  that  was 
the  motion  made.  I  think  it  must  be  answered  in  the  affirmative. 
The  defendant  was  entitled  to  a  jury  trial  thereon,  and  did  not  waive  it.2 
It  did  not  plead  a  misjoinder,  nor  that  the  executors  had  an  adequate 
remedy  at  law  (for  that  was  not  true  of  their  cause  of  action  as  alleged, 
and  therefore  could  not  be  pleaded  of  it) ;  nor  did  it  move  to  dismiss 
their  cause  of  action  upon  the  evidence,  which  revealed  that  they  had 
none  in  equity ;  but  nevertheless  they  asked  in  time  for  a  jury  trial. 
That  they  did  this  instead  of  asking  for  the  dismissal  which  they  were 
entitled  to,  cannot  be  found  fault  with  by  the  plaintiff  executors  ;  and 
I  do  not  dismiss  it  only  because  the  defendant  asTcs  instead  that  it  be 
sent  to  the  jury  calendar. 

From  the  time  the  road  was  built  to  the  present,  I  find  that  the  value 
of  the  property  has  depreciated  about  $2,000,  one-half  of  which  is  per- 
manent damage  caused  by  the  road.  The  plaintiff  Jacobson  has  lost 
$60  in  rent. 

Let  the  plaintiff  Jacobson  have  judgment  for  a  perpetual  injunction 
unless  this  sum  of  $i,o6o  be  paid. 


LECK  V.  RUDD. 

Supreme  Court  of  New  York,  Trial  Term,  April,   1898. 

[53  N.    Y.  Supp.  208.] 

Action  by  William  Leek,  an  infant,  etc.,  against  John  Rudd,  to 
recover  damages  for  breach  of  contract. 

T.  E.  Murray,  for  plaintiff. 

A.  B.  Carringtoti,  for  defendant. 

McAdam,  J. — The  complaint  charges  that  the  defendant,  a  wholesale 
dealer  in  milk,  sold  to  the  plaintiff,  for  use  in  his  business,  a  quantity 
of  milk,  on  the  agreement  that  it  should  be  pure  and  wholesome  ;  that, 
relying  upon  this  agreement,  the  plaintiff  received  from  the  defendant, 
and  sold  to  customers  from  day  to  day,  certain  of  said  milk,  which  he 
believed  to  be  pure  and  wholesome  ;  that  on  August  22,  1895,  a  milk 
inspector  tested  certain  milk  which  the  plaintiff  on  that  da}-  had 
received  from  the  defendant  under  said  agreement,  and,  on  September 
4th  following,  caused  the  plaintiff 's  arrest  for  selling  adulterated  milk  ; 
that,  upon  a  trial  subsequently  had,  the  plaintiff  was  convicted  of  the 

1  Dalton  V.  Vanderveer  (Sup.)  29  N.  Y.  Supp.  342  ;  Wheelock  v.  Lee,  74  N.  Y.  495. 

2  Wheelock  v.  Lee,  74  N.  Y.  495 ;  Code  Civ.  Pro.  g  1009. 


172  EFFECT    IN    RELATION    TO   SL'KSTANTIVE    LAW. 

offence,  and  fined  $ioo  ;  and  that  the  publication  of  his  arrest  and  con- 
viction injured  his  business. 

This  is  not  a  case  where  a  vendee  is  seeking  to  obtain  the  difference 
between  the  market  value  and  the  agreed  price  of  the  thing  sold  ;  nor 
is  there  any  allegation  that  the  vendee  had  paid  the  agreed  price,  so  as 
to  make  such  difference  recoverable.  The  action  is  to  recover  for  a 
remote  consequence  of  the  sale,— injury  to  the  vendee's  business,  caused 
by  his  arrest  and  conviction, — not  within  the  presumed  contemplation  of 
'  the  parties.  In  order  to  recover  consequential  damages  of  this  charac- 
ter, the  action  should  have  been  brought  e:t:  delicto  ;  and  scienter  should 
have  been  charged,  so  as  to  make  it  one  for  deceit. ^  It  was  not  so 
brought,  but  on  the  theory  of  contract.-  This  was  stated  by  the  plain- 
tiff's counsel  in  his  opening.  In  such  form,  the  action  for  consequen- 
tial damages  is  not  maintainable,  and  for  this  reason  the  complaint 
must  be  dismissed. 


WISNER  "'.  THE  CONSOLIDATED  FRUIT  JAR  COMPANY. 

Supreme  Court  of   New    York,    Appellate  Division,  February 

Term,   1898. 

[25  App.  Div.  362.] 

Appeal  by  the  defendant,  The  Consolidated  Fruit  Jar  Company,  from 
an  interlocutor^'  judgment  of  the  Supreme  Court  in  favor  of  the  plain- 
tiff, entered  in  the  office  of  the  clerk  of  the  county  of  Monroe  on  the  9th 
day  of  August,  1897,  upon  the  decision  of  the  court,  rendered  after  a 
trial  at  the  Monroe  Special  Term,  overruling  the  defendant's  demurrer 
to  the  complaint  on  the  sole  ground  that  it  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action. 

George  B.  Lester,  for  the  appellant. 
William  A.  Sutherland,  for  the  respondent. 

FOLLETT,  J. — The  complaint  alleges  but  one  count.  Its  draughts- 
man evidently  entertained  the  idea  that  he  was  setting  forth  facts  con- 
stituting an  equitable  cause  of  action  for  an  accounting,  but  in  this  he 
was  in  error. 

An  equitable  action  for  an  accounting  cannot  be  maintained  by  a 
vendee  of  goods,  who  has  paid  money  from  time  to  time  on  the  account, 
against  his  vendor  to  ascertain  the  state  of  the  account,  and  the  fact 
that  the  prices  for  all  or  some  of  the  goods  sold  were  not  agreed  upon 
does  not  change  the  rule. 

The  facts  alleged  show  that  for  several  years  before  this  action  was 
begun  the  plaintiff  purchased  goods  at  various  times  of  the  defendant, 

1  Baylies,  Code  PI.  i6i  ;  5  Am.  &  Eng.  Enc.  Law,  318. 

2  See  25  Am.  &  Eng.  Enc.  Law,  72. 


WISNER   v.    THE   CONSOLIDATED   FRUIT  JAR    CO.  173 

for  which  the  plaintiff  became  liable  to  pay  the  defendant  their  value 
or  their  agreed  price,  and  that  from  time  to  time  the  plaintiff  paid  the 
defendant  sums  of  mone}-,  by  which,  as  the  plaintiff  alleges,  he  over- 
paid the  defendant  by  about  $5,000,  which  he  seeks  to  recover,  and  for 
which  he  demands  judgment.  This  is  simply  a  legal  cause  of  action. 
It  is  true  that  the  plaintiff,  in  addition  to  his  demand  for  a  money  judg- 
ment, also  demands  an  accounting,  but  this  does  not  make  the  action 
an  equitable  one.  In  case  a  plaintiff,  by  accident  or  design,  sets  forth 
a  legal  cause  of  action  in  his  complaint,  which  he  e/roneously  supposes 
to  be  an  equitable  cause  of  action,  and  demands  a  money  judgment,  a 
demurrer  to  the  complaint  on  the  ground  that  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action  will  not  be  sustained.  In  case 
a  plaintiff  has  the  right  to  maintain  an  action  at  law  or  a  suit  in  equity, 
and  he  elects  to  bring  a  suit  in  equity,  demanding  only  equitable  relief, 
but  fails  to  state  sufficient  facts  in  his  complaint  to  constitute  an  equit- 
able cause  of  action,  and  the  defendant  demurs  on  the  ground  "that 
the  said  complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  "the  demurrer  will  be  sustained,  though  the  facts  alleged  are 
sufficient  to  constitute  a  legal  cause  of  action  ;  and  so,  in  case  he  elects 
to  bring  an  action  at  law,  demanding  only  legal  relief  but  fails  to  state 
sufficient  facts  in  his  complaint  to  constitute  a  legal  cause  of  action,  and 
the  defendant  demurs  on  the  ground  ' '  that  the  said  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action, "  the  demurrer  will 
be  sustained,  though  the  facts  alleged  are  sufficient  to  constitute  an 
equitable  cause  of  action.' 

In  such  a  case  a  plaintiff  has  his  choice  of  remedies,  and,  having 
made  his  election,  he  must,  in  the  face  of  a  demurrer,  abide  by  his 
election.  The  case  at  bar  is  quite  different.  On  the  facts  set  forth  in 
the  complaint,  the  plaintiff  has  no  equitable  cause  of  action,  but  has  a 
legal  one,  and  having  demanded  a  money  judgment  as  well  as  equita- 
ble relief,  the  complaint  is  not  demurrable  on  the  ground  that  it  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.' 

The  cases  of  which  Bockcs  v.  Lansing,  74  N.  Y.  437,  Wheelock  v.  Lee, 
74  N.  Y.  495,  Dalton  v.  Vanderveer,  8  Misc.  Rep.  484,  Fitzsimotis  v. 
Drought,  16  App.  Div.  454,  are  types,  holding  that  when  an  equitable 
cause  of  action  is  set  out  in  the  complaint,  the  defendant  answers,  the 
cause  is  tried  as  an  equitable  one,  and  the  evidence  fails  to  establish  an 
equitable  cause  of  action,  the  plaintiff  cannot  recover  on  the  ground 
that  the  evidence  establishes  a  legal  cause  of  action,  are  not  in  point. 
An  equitable  cause  of  action  is  not  set  out  in  the  complaint.  This  case 
has  not  been  tried,  and,  it  appearing  on  the  face  of  the  complaint  that 
the  trial  of  the  action  will  involve  the  examination  of  a  long  accotmt, 
it  will  necessarily  be  tried  before  a  referee,  neither  party  being  entitled 

1  Edson  V.  Girvan,  29  Hun,  422  ;  Swart  v.  Boughton,  35  Hun,  2S1  :  Willis  v.  Fairchild,  19  J 
&  S.  405;  Fisher  v.  Charter  Oak  Life  Ins.  Co.,  20  J.  &  S.  179. 

1  Porous  Plaster  Co.  v.  Seabury,  43  Hun,  611  ;  Wetmore  v.  Porter,  92  N.  Y.  76. 


174  EFFECT    IN    RELATION    TO   SUBSTANTIVE   LAW. 

to  a  trial  by  jury.  Under  our  code  of  procedure  an  equitable  action 
for  an  account  is  not  sustainable  in  many  cases  in  which  such  an  action 
was  sustainable  under  the  practice  prevailing  before  1848.  In  an  action 
at  law  the  service  of  a  bill  of  particulars  and  the  production  of  books 
and  papers  may  be  compelled ;  the  adverse  party  may  be  examined 
before  trial,  and  the  issues  are  usually  tried  before  a  referee. ^  The 
plaintiflf  has  taken  upon  himself  the  burden  of  showing  the  amount 
and  value  of  the  goods  purchased  by  him  and  when  purchased,  and,  in 
case  the  goods  were  sold  at  prices  agreed  upon,  the  prices  at  which  they 
were  sold,  and  also  showing  the  sums  which  he  has  paid  on  account  of 
such  goods  and  when  paid.  He  will  not  establish  a  cause  of  action  by 
simply  showing  the  amounts  which  he  has  paid,  because  his  cause  of 
action  rests  on  the  theory  of  overpayment,  to  establish  which  he  must 
necessarily  prove  both  sides  of  the  account. 

The  interlocutory  judgment  overruling  the  demurrer  should  be 
affirmed,  with  costs,  with  leave  to  the  defendant  to  withdraw  its  de- 
murrer and  answer  on  the  payment  of  costs. 

All  concurred. 


KRESS  V.  WOEHRLE. 
Supreme  Court  of  New  York,  Appellate  Term,  May,  1898. 

[23  Misc.  472.-] 

Appeal  by  the  plaintiflf  from  a  judgment  rendered  in  his  favor  "for 
moneys  loaned  ;  no  fraud  shown.  " 

The  nature  of  the  action  and  the  material  facts  appear  in  the  opinion. 

M.  S.  Adler,  for  appellant. 

Julius  Henry  Cohen,  for  respondent. 

Giegerich,  J. — The  plaintiflf  sued  for  the  recovery  of  moneys  alleged 
to  have  been  obtained  from  him  by  the  defendant  by  fraudulent  repre- 
sentations. The  justice  decided  that  no  fraud  was  shown,  and  gave 
judgment  in  favor  of  plaintiflf  for  the  amount  claimed  "for  moneys 
loaned."  This  was  error.  If  the  justice  did  not  believe,  as  is  obvious, 
that  a  fraud  had  been  committed,  it  was  his  duty  to  dismiss  the  com- 
plaint, or,  upon  a  conflict  of  the  evidence,  to  render  a  judgment  in  favor 
of  the  defendant,  and  not  give  judgment  for  the  plaintiflf  for  the  sum 
obtained  ^.r  co7itractu. 

The  form  of  the  plaintiff's  action  being  ex  delicto,  it  was  incumbent 
Upon  him  to  establish  the  fact  that  the  defendant  was  guilty  of  fraud  in 

1  Marvin  v.  Brooks,  94  N.  Y.  71,  80. 

2  S.  C.  52  N.  Y.  Supp.  628. 


YAKDUiM    Z\    WOU'\  175 

contracting  or  incurring  the  liability,  and  his  allegations  were  not 
sustained  by  the  mere  proof  of  a  contract  and  its  breach. ^ 

The  judgment  cannot  stand  in  any  event,  because  it  is  not  seciaidiim 
allegata  ct  probata .  '^ 

The  judgment  should,  therefore,  be  reversed  and  a  new  trial  ordered, 
with  costs  to  the  appellant  to  abide  the  event. 

Beekman,  p.  J.,  and  G11.DERSLEEVE,  J.,  concur. 


YARDUM    V.    WOLF. 

Supreme  Court  of  New  York,  Appellate  Division,  August  10, 

1898. 

[33  App.  Div.  247-='] 

Appeal  by  the  defendant,  Morris  Wolf,  from  an  order  of  the  Supreme 
Court,  made  at  the  New  York  Special  Term  and  entered  in  the  office  of 
the  clerk  of  the  county  of  New  York  on  the  6th  da}^  of  July,  1898,  deny- 
ing the  defendant's  motion  to  vacate  an  order  of  arrest  heretofore  granted 
in  the  action. 

Edward  A.  Alexander,  for  the  appellant. 

E.  G.  Benedict,  for  the  respondents. 

Order  affirmed,  with  ten  dollars  cost  and  disbursements,  on  opinion 
of  Daly,  J. 

Present — Barrett,  Rumsey,  O'Brien,  and  Ingraham,  JJ, 

The  following  is  the  opinion  of  Daly,  J. — The  defendant  is  arrested 
for  conversion  and  moves  to  vacf.te  the  order  for  alleged  insufficiency  of 
the  complaint,  as  indicated  in  the  brief  of  counsel.  It  is  contended  (i) 
that  the  complaint  shows  that  the  plaintiffs  elect  to  sue  upon  contract 
for  goods  consigned,  or  their  proceeds,  and  not  for  conversion  ;  and  (2) 
that  the  complaint  fails  to  state  that  the  plaintiffs  have  any  property  in 
the  goods  or  any  right  to  immediate  possession.  The  complaint  sets 
forth  that  the  plaintiffs  are  dealers  in  nigs,  and  that  two  lots  of  rugs 
were  delivered  by  them  to  the  defendant  (on  March  10,  and  June  2,  1898, 
respectively),  as  a  factor,  on  consignment  upon  an  agreement  that  the 
defendant  should  receive  the  rugs  on  consignment,  as  factor,  should  sell 
such  as  he  should  be  able  to  sell  and  return  to  plaintiffs  on  the  sale  of 
all  the  first  lot  $1,759.29,  and  on  the  sale  of  the  second  lot,  $2,084.05, 
each  rug  having  a  valuation,  and  the  sum  of  the  valuations  of  the  re- 
spective  lots  being  the  respective  sums  aforesaid  ;  the  defendant  to 

1  Citing,  Walter  v.  Bennett,  i6  N.  Y.  250  ;  Ross  v.  Mather,  51  N.  Y.  108  ;  TruesdeU  v. 
Bourke,  145  N.  Y.  612 ;  Kley  v.  Healy,  9  Misc.  93  ;  Smith  v.  Smith,  4  App.  Div.  227  ;  Starr  v. 
Silverman,  23  Misc.  151  ;  50  N.  Y.  Supp.  657  ;  Wright  v.  Duffie,  23  Misc.  33S. 

2  Citing,  Fuld  v.  Kahn,  4  Misc.  600;  Ovrens  v.  Flynn,  7Misc.  171  ;  KleyK.  Healy,  9  Misc.  93. 

3  S.  C,  54  N.  Y.  Supp.  192. 


176  EFFECT   IN   RELATION   TO  SUBSTANTIVE   LAW. 

receive  for  his  services  in  selling  whatever  he  should  receive  over  those 
sums,  and  in  case  he  should  not  sell  any  of  said  rugs  to  return  them  to 
plaintiffs.  The  complaint  further  sets  forth  that  none  of  the  rugs  has 
been  returned,  and  that  as  to  the  first  lot  defendant  has  refused  to  in- 
form plaintiffs  how  many  he  has  sold  ;  that  he  has  paid  $300  on  account 
of  their  value,  and  has  refused  on  demand  to  return  any  of  them  or  the 
proceeds  thereof,  and  has  converted  to  his  own  use  all  the  rugs  which 
he  has  not  sold,  and  all  the  money  for  which  the  rugs  have  been  sold 
by  him  as  factor,  except  the  said  sum  of  $300  ;  and  as  to  the  second  lot, 
that  he  has  not  returned  any  of  said  rugs,  nor  the  money  for  which  he 
has  sold  any  of  the  same,  but  has  converted  to  his  own  use  the  rugs  or 
the  money  ;  that  plaintiffs  have  demanded  of  defendant  that  he  should 
return  the  rugs,  or  such  of  them  as  he  had  not  sold,  and  the  proceeds  of 
any  which  he  has  sold,  if  any,  but  that  the  defendant  has  refused  so  to 
do.  As  to  the  first  lot  it  is  alleged  that,  by  reason  of  such  conversion, 
the  plaintiffsareentitled  to  have  of  defendant  the  said  sum  of  $1,759.29, 
less  the  payment  of  $300,  and  an  allowance  of  $75  on  previous  transac- 
tions, making  the  amount  $1,384.29.  As  to  the  second  lot  it  is  alleged 
that  the  defendant,  by  reason  of  the  premises,  is  indebted  to  the  plain- 
tiffs in  the  sum  of  $2,084.05,  and  the  plaintiffs  demand  judgment  for  the 
said  sums,  with  interest  on  each. 

There  is  no  ground  for  the  contention  that  the  plaintiffs  have  waived 
the  tort  and  elected  to  sue  on  contract.  McDonough  v.  Dillingham,  43 
Hun  4y3,  is  cited  by  defendant's  counsel.  In  that  case  the  complaint 
set  up  a  cause  of  action  on  contract,  with  allegations  of  fraud  in  con- 
tracting the  debt,  and  it  was  held  that  the  action  was  upon  contract, 
the  allegation  of  fraud  being  added  under  section  549  of  the  Code. 
The  decision  has  no  bearing  upon  this  case.  The  causes  of  action  here 
are  characterized  by  the  allegations  of  conversion,  and  those  allegations 
evince  the  plaintiffs'  election  to  sue  for  the  tort.  There  is  no  ambi- 
guity nor  uncertainty  on  this  point  in  the  complaint,  and  so  the  de- 
mand for  judgment  for  the  specific  valuations  fixed  by  agreement  upon 
the  goods  instead  of  a  demand  for  damages,  and  general  allegations  of 
damage  have  no  significance.  Nor  is  the  objection  that  the  complaint 
does  not  allege  ownership  nor  right  of  possession  of  plaintiffs  well 
taken.  It  is  true  that  ownership  or  right  of  possession  must  be  pleaded 
and  proved  to  sustain  an  action  for  conversion  ;  but,  so  far  as  the  plead- 
ing is  concerned,  it  is  sufiicient  if  facts  are  set  forth  which  show  prop- 
erty or  right  of  possession  in  the  plaintiff.  Bare  possession  of  property 
or  mere  prior  possession  is  sufiicient  to  sustain  trover,  ^ 

An  allegation  of  possession  imports  lawful  possession,  and  an  alle- 
gation "that  the  property,  after  being  in  the  possession  of  the  plain- 
tiff came  into  the  possession  of  the  defendant,  who,  although  often 
requested  so  to  do,  has  not  delivered  the  same  to  the  plaintiff,  but 

1  Duncan  v.  Spear,  11  Wend.  54,  and  note. 


PICKENS    :'.    SOUTH    CAROLINA    AND    GEORGIA    R.    R.    CO.  177 

wrongfully  detains   the  said  goods  from  him,  "  is  sullicient,    if    true, 
to  establish  conversion. ' 

The  facts  pleaded  in  this  complaint  show  that  the  rugs  after  being 
in  possession  of  plaintiffs  came  into  possession  of  defendant,  for  they 
were  delivered  to  defendant  by  plaintiffs  to  be  sold.  This  prior  pos- 
session of  plaintiffs  is  to  be  presumed  lawful.  Wrongful  detention  is 
shown  by  defendant's  refusal  to  deliver  on  demand  of  his  principals, 
which  he  was  bound  to  do,  no  right  to  detain  them  against  the  demand 
of  the  principals  being  shown.  On  the  contrary,  the  refusal  of  the 
agent  to  account,  that  is,  to  state  how  many  rugs  had  been  sold,  gave 
immediate  right  to  demand  the  return  of  the  goods  on  hand  and  the 
proceeds  of  any  that  had  been  sold.  Refusal  to  comply  with  that  de- 
mand was  wrongful,  and  a  cause  of  action  for  conversion  was  sufii- 
ciently  set  forth  by  pleading  those  facts. 

Motion  to  vacate  order  of  arrest  denied,  with  ten  dollars  costs. 


PICKENS  -.'.  SOUTH  CAROLINA  AND  GEORGIA  R.  R.  CO. 

Supreme  Court  of   South  Carolina,  March  25,   1899. 

[54  S.  C.  498.] 

Mr.  Justice  Gary. — The  complaint  sets  forth  two  causes  of  action, 
the  first  of  which  is  as  follows  : 

I.  The  first  paragraph  alleges  the  corporate  existence  of  the  defend- 
ant. 

"  II.  That  at  the  said  times,  the  defendant  was  operating  in  connection  with 
its  railroad,  the  Carolina,  Cumberland  Gap  and  Chicago  Railroad,  the  same 
being  a  line  of  railway  running  from  the  city  of  Aiken,  in  this  state,  to  the  town 
of  Edgefield,  also  in  this  state,  and  then  owned  by  the  Carolina,  Cumberland 
Gap  and  Chicago  Railway  Company,  which  was  also  a  corporation  created  by 
and  under  the  laws  of  this  state. 

"III.  That  on  or  about  the  31st  day  of  March,  1896,  the  plaintiff,  for  a  valuable 
consideration,  purchased  of  the  defendant  company  at  the  depot  of  the  Carolina, 
Cumberland  Gap  and  Chicago  Railway,  at  the  town  of  Edgefield,  a  round  trip 
ticket,  which  entitled  the  plaintiff  to  passage  from  the  town  of  Edgefield  over  the 
railway  of  the  said  Carolina,  Cumberland  Gap  and  Chicago  Railway  Company, 
via  the  said  city  of  Aiken,  thence  over  the  railway  of  the  defendant  company  to 
the  city  of  Augusta,  in  the  State  of  Georgia,  which  said  ticket  was  limited  to  a 
period  of  ten  days  from  the  date  of  issuance.  And  that  the  plaintiff  did  accord- 
ingly, on  or  about  the day  of  March,  1896,  board  a  passenger  car  of  defend- 
ant at  Edgefield,  and  in  due  course  of  travel  was  carried  by  virtue  of  said  ticket 
to  the  said  city  of  Augusta ;  and  after  remaining  in  said  city  several  days,  the 

plaintiff   did,   on  or  about  the  day  of   April,  1896,  and  within   the  period 

limited  by  said  ticket,  board  the  train  of  the  defendant  company,  for  the  purpose 
1  Sheldon  v.  Hoy,  ii  How.  Pr.  ii,  l6. 


178  EFFECT   IN    RELATION  TO    SUBSTANTIVE    LAW. 

of  returning  to  the  town  of  Edgefield  upon  said  ticket,  as  was  provided  by  the 
terms  of  the  contract  thereon  stated  ;  but  that  when  the  plaintiff  reached  the  city 
of  Aiken  on  the  said  return  trip,  the  defendant,  in  disregard  of  its  said  contract 
as  contained  upon  said  ticket,  and  of  the  rights  of  the  plaintiff,  negligently  failed 
to  carry  or  to  provide  for  the  carriage  of  the  plaintiff  from  said  city  of  Aiken  to 
the  said  town  of  Edgefield,  and  left  her  in  said  city  of  Aiken.  And  the  plaintiff 
further  alleges  that  by  reason  of  the  failure  of  the  defendant  to  carry  her  back 
to  said  town  of  Edgefield,  she  was  exposed  to  a  severe  storm  of  sand,  wind,  and 
rain,  which  brought  on  her  a  severe  attack  of  sickness,  and  caused  her  to  be  con- 
fined to  her  bed  and  house  for  upwards  of  two  months,  and  caused  her  severe 
pains  and  suffering,  and  has  thereby  caused  her  health  to  be  permanently  im- 
paired, so  that  she  is  not  as  strong  and  healthy  as  she  was  before  being  exposed 
to  said  storm,  through  the  negligence  of  the  defendant  in  not  providing  her  with 
passage  back  to  the  town  of  Edgefield,  as  aforesaid,  to  the  injury  and  damage  of 
the  plaintiff  in  the  sum  of  $2,000." 

The  second  cause  of  action  is  similar  in  its  allegations  to  the  first, 
except  it  alleges  that  the  defendant's  wrongful  act  w^as  willful,  grossly 
negligent,  and  in  wanton  and  reckless  disregard  of  the  plaintiff's 
rights,  and  that  she  was  damaged  in  the  sum  of  $5,000. 

The  jury  rendered  a  verdict  in  favor  of  the  plaintiff  for  $3,000,  and 
the  defendant  appealed  upon  exceptions,  the  first  of  which  is  as  fol- 
lows :  "I.  That  his  Honor,  Judge  "Watts,  the  presiding  Judge,  erred 
in  permitting  the  plaintiff,  as  a  witness  upon  the  stand,  against  the 
objection  of  the  defendant,  to  testify  that  she  was  caught  in  a  storm 
of  sand  and  rain  after  she  left  the  depot  of  the  defendant  company  at 
Aiken,  and  to  testify  that  she  received  injuries  from  said  storm.  For 
the  reason,  it  is  submitted,  that  this  action  is  for  a  breach  of  contract 
and  not  a  tort,  and  such  damages  are  too  remote,  and  would  not  enter 
into  the  proper  measure  of  damages  for  the  cause  of  action  set  forth  in 
the  complaint. " 

The  first  question  raised  by  this  exception  is  whether  the  action  is 
for  a  breach  of  contract  or  a  tort.  The  allegations  of  the  first  cause  of 
action  are  appropriate  to  an  action  of  tort  arising  from  negligence,  and 
the  second  cause  of  action  is  found  upon  a  tort  growing  out  of  alleged 
willfulness  or  intentional  wrong.  The  cases  of  Head  v.  R.  R.  Co.,  7 
S.  E.  R.  (Ga.)  217,  Purccll  v.  R.  R.  Co.,  12  L.  R.  A.  (N.  C.)  113,  and 
Hansley  v.  R.  R.  Co.,  32  L.  R.  A.  (N.  C.)  543,  as  well  as  mau}^  others 
that  could  be  cited,  show  that  an  action  of  tort  can  be  brought  for  such 
alleged  violation  of  duty  ;  and  the  case  of  Hammond  v.  R.  R.  Co.,  6  S. 
C.  130,  which  was  an  action  by  a  passenger  to  recover  damages  for  in- 
jury caused  by  defendant's  negligence,  shows  that  the  recital  of  the 
contract  was  not  for  the  purpose  of  "  founding  a  right  to  a  recovery 
for  the  breach  of  the  contract."  The  Court  further  says :  "It  was 
not  referred  to  as  the  foundation  of  his  action.  It  may  be  that  his 
complaint  would  not  have  been  open  to  any  exception,  if  he  had 
omitted  all  reference  to  it.     It  was  introduced  to  show  that  he  was  not 


WARD   :'.    ST.    VINCENT'S   HOSPITAL.  179 

an  intruder  on  the  train  of  the  company.  It  was  merel}^  preliminary 
to  the  statement  of  his  real  cause  of  action,  and  if  necessary  to  its  sup- 
port, he  could  have  offered  proof  of  it  without  setting  it  out  in  his  com- 
plaint. "  Parenthetically,  we  may  remark  that  the  case  of  Purcell  v. 
R.  R.  Co.  and  Haiisley  v.  R.  R.  Co.,  supra,  are  in  seeming  conflict; 
but  when  carefully  considered  it  will  be  seen  that  the  Court  reached 
the  correct  conclusion  in  each  of  them.  In  the  case  of  Purcell  v.  R.  R. 
Co.,  the  intentional  wrong  of  the  defendant  was  the  direct  cause  of  the 
injury,  while  in  the  case  of  Hanslcy  v.  R.  R.  Co.,  an  efficient  cause  in- 
tervened, to  wit :  the  breaking  of  the  axle,  which  was  not  intentional. ^ 


WARD  V.  SAINT  VINCENT'S  HOSPITAL. 

Supreme   Court  of   New   York,    Appellate  Division,  April  21, 

1899. 

[39  App.  Div.  624.=] 

Appeal  by  the  plaintiff,  Helen  D.  Ward,  from  a  judgment  of  the  Su- 
preme Court  in  favor  of  the  defendant,  entered  upon  the  verdict  ren- 
dered by  direction  of  the  court,  and  also  from  an  order  denying  the 
plaintiff's  motion  for  a  new  trial  made  upon  the  minutes. 

Edward  C.  James,  for  the  appellant. 

Austen  G.  Fox,  for  the  respondent. 

Barrett,  J. — The  appellant  contends  that  this  action  is  brought  to 
recover  damages  because  of  the  breach  of  an  express  contract  whereby 
the  defendant  agreed  to  furnish  her  a  skilled,  competent,  and  trained 
nurse.  We  see  no  reason  to  doubt  the  accuracy  of  this  contention. 
Such  an  express  contract  is  averred  in  the  complaint,  also  its  breach 
and  damages  resulting  therefrom.  The  learned  trial  judge  held  that 
the  action  was  exclusively  in  tort  and  that  the  contract  alleged  was 
material  only  in  the  sense  in  which  the  payment  of  fare  is  material  in 
an  action  for  personal  injuries  by  a  passenger  against  a  carrier.  He 
thus  held  that  the  action  was  essentiall}'  for  a  breach  of  duty,  and 
having  reached  the  conclusion  that  no  such  breach  of  duty  was  proved, 
he  directed  a  verdict  for  the  defendant.  It  is  not  necessary,  in  our  view 
of  the  gravamen  of  the  complaint,  to  consider  the  correctness  of  the 
latter  conclusion.  While  there  are  phrases  in  the  complaint  which 
refer  to  the  defendant's  duty,  yet  this  duty  is  always  predicated  upon 
the  express  contract  alleged.  In  one  instance  the  plaintiff  avers  that, 
' '  pursuant  to  the  terms  of  said  contract, ' '  the  defendant  received  the 

1  The  judgment  below,  which  had  been  for  plaintiff,  was  however  reversed  upon  another 
point. 

Only  so  much  of  the  opinion  is  given  as  refers  to  the  question  of  pleading. 
■2  S.  C.  57  N.  Y.  Supp.  784. 


180  EFFECT   IN   RELATION   TO   SUBSTANTIVE    LAW. 

plaintiflF  in  the  hospital  ;  in  another  that,  ' '  in  consideration  of  the 
premises,  "  which  embrace  the  contract,  the  defendant  "undertook  and 
contracted,"  etc.;  in  yet  another  that,  "by  reason  of  the  premises  " — 
still  the  contract — "it  became  and  was  the  duty  of  the  defendant  to 
furnish, "  etc. ;  and  finally  that,  being  in  the  hospital,  "under  and  in 
pursuance  of  said  contract,"  the  defendant  negligently  and  unskillfully 
failed  or  omitted  to  furnish,  etc.  It  is  impossible  to  analyze  this  com- 
plaint without  seeing  that  the  breach  of  the  defendant's  contract  is 
throughout  the  gravamen  of  the  action.  The  plaintiff  even  alleged,  as 
in  an  ordinary  action  upon  contract,  that  she  "has  complied  with  all 
the  terms  and  conditions  of  said  contract,  and  has  fully  discharged  all 
her  duties  and  liabilities  thereunder."  Treating  the  phrases  sugges- 
tive of  a  duty  most  favorably  to  the  defendant,  we  still  have  an  action 
founded  upon  the  contract.  As  was  said  in  Orange  Bank  v.  Brozim,  3 
Wend.  158,  169  :  "If  the  plaintiff  states  the  custom,  and  also  relies  on 
an  undertaking  general  or  special,  ....  then  the  action  may  be  said 
to  be  ex  delicto  quasi  ex  contractu;  but  in  reality  is  founded  on  the  con- 
tract, and  to  be  treated  as  such. ' ' 

The  learned  judge  here  applied  by  analogy  the  ordinary  rule  in 
actions  against  carriers.  That  rule,  however,  permits  the  injured  pas- 
senger to  maintain  an  action,  either  in  contract  or  in  tort  at  his  elec- 
tion ;  that  is,  either  what  was  formerly  assutupsit  for  the  breach  of  the 
contract,  whether  express  or  implied,  or  on  the  case  for  the  wrong. 

In  the  present  case,  the  contract  was  express.  It  settled  all  ques- 
tions of  general  duty  attached  by  law,  and  became  the  criterion  of  the 
defendant's  specific  duty  in  this  particular  case.  And  it  was  a  contract 
which  the  defendant  certainly  had  power  to  make.  Though  the  de- 
fendant is  what  is  termed  a  charity  hospital,  it  has  its  "pay  "  side. 
Upon  the  latter  side,  it  was  in  the  habit  of  furnishing  private  rooms 
and  nurses  to  well-to-do  people  for  a  full  price.  For  the  breach,  then, 
of  that  express  specific  and  valid  contract,  the  plaintiff  was  entitled  to 
the  same  damages  as  though  the  action  had  been  for  negligence  pure 
and  simple.  In  either  case  she  was  entitled  to  compensation,  that  is, 
to  an  adequate  indemnity  for  her  injuries,  no  more  and  no  less. 

There  was  ample  evidence  of  the  express  contract  thus  pleaded.  The 
testimony  adduced  by  the  plaintiff  is  most  explicit  on  this  head.^ 

It  follows  that  the  judgment  and  order  appealed  from  should  be  re- 
versed and  a  new  trial  granted,  with  costs  to  appellant  to  abide  the 
event. 

Van  Brunt,  P.  J.,  Rumsey,  and  Patterson,  JJ.,  concurred. 

Judgment  and  order  reversed,  7iew  trial  granted,  costs  to  appellant  to 
abide  event. 

1  Part  of  the  opinion,  discussing  the  evidence,  is  omitted. 


BKAWLKY   V.    SMITH   AND   OTHERS.  l&l 

BR  AW  LEY  V.  SMITH  AND  OTHERS. 

Court  of  Appeals  or  Kansas,  October  17,  1S98. 

[ Kan.  App. '] 

From  a  judgment  for  defendants,  plaintiff  brings  error.  His  petition 
asserted,  in  substance,  ownership  and  right  of  possession  of  certain 
notes  and  mortgages  therein  described,  and  that  he  hrd  allowed  the 
defendant  Farr  to  deposit  these  notes  and  mortgages  with  the  de 
fendant  the  Exchange  Bank  of  Stockton,  to  secure  the  note  of  the  de- 
fendants Felix  Smith  and  George  O.  Farr  for  $959-5o.  falling  due  May 
15,  1S95.     It  was  then  averred  as  follows  : 

"Plaintiff  believes,  and  alleges  the  fact  to  be,  that  by  agreement  between  the 
said  bank  and  the  said  Smith  and  Farr  the  bank  received  certain  other  mort- 
gage security,  and  the  payment  of  interest,  and  in  consideration  extended  the 
time  of  the  payment  of  their  said  note  several  times,  and  by  reason  thereof 
said  bank  has  relinquished  its  right  to  this  plaintiff  's  notes  and  mortgages  sued 
for.  Wherefore  plaintiff  prays  a  disclosure  of  the  facts  by  the  defendants,  and, 
if  found  that  said  note  has  been  extended,  that  the  plaintiff's  notes  and  mort- 
gages be  returned  to  him,  but,  if  the  court  finds  that  said  note  has  not  been  ex- 
tended, that  the  court  render  judgment  in  favor  of  the  plaintiff,  for  the  use  of 
said  bank,  against  said  Smith  and  Farr,  for  the  amount  due  on  their  note  to 
said  bank,  and  foreclose  the  mortgage  last  given  by  them  as  security  therefor, 
and  that  plamtiff  have  return  of  his  notes  and  mortgages,  and  all  other  equitable 
relief." 

To  this  petition  the  defendants  demurred— F/r^/,  because  several 
causes  of  action  are  improperly  joined;  and,  secondly,  because  "said 
petition  does  not  state  facts  sufficient  to  constitute  a  cause  of  action." 
The  demurrer  was  sustained  on  both  grounds  as  to  all  the  defendants 
except  the  bank,  and  was  sustained  in  favor  of  the  bank  on  the  first 
ground,  and  overruled  as  to  the  second.  Thereupon  the  action  was 
dismissed  by  the  court  as  to  all  the  defendants  except  the  bank,  and 
the  plaintiff  was  required  to  elect  whether  he  would  proceed  in  equity, 
or  at  law,  as  in  replevin  ;  and,  duly  objecting  to  such  order,  the  plain- 
tiff elected  the  latter. 

Wells,  J. In  this  action  there  was  error.     The  petition  stated  a 

cause  of  action,  and  but  one.  If  the  allegations  of  the  petition  w^ere 
true,  and  by  reason  of  extensions  the  surety  has  been  released,  then 
the  plaintiff  was  entitled  to  a  restitution  of  his  property  ;  but  if  the 
surety  has  not  been  released,  and  the  other  allegations  of  the  petition 
were  true,  then  the  plaintiff  was  entitled  to  have  the  matter  closed  up, 
the  security  of  the  principal  debtors  exhausted,  and  the  balance  made 
from  his  security,  and  the  remainder  turned  back  to  him.  And  in  this 
Smith  and  Farr  were  necessary  parties.     In  relation  to  the  order  of  the 

1  S.  C.  54  Pac.  Rep.  S04. 


182  EFFlvCT   IN   RELATION   TO  SUBSTANTIVE   LAW. 

court  compelling  plaintiff  to  elect  a  name  for  his  cause  of  action,  we 
quote  from  the  language  of  Mahan,  P.  J.,  in  Freeman  v.  Trickett,  6  Kan. 
App.  84,  49  Pac.  672  :  "Our  Code  of  Civil  Procedure  has  abolished 
all  forms  of  action,  and  has  declared  that  there  shall  be  but  one  form 
of  action,  which  shall  be  called  '  a  civil  action.'  It  provides  that  the 
plaintiff  shall  state  the  facts  constituting  his  cause  of  action  con- 
cisely, without  repetition,  and  it  then  becomes  the  duty  of  the  court  to 
say  whether  or  not  it  states  a  cause  of  action,  and  to  what  relief  the 
plaintiiF  is  entitled  ;  but  it  is  unnecessary  to  say  whether  it  would  have 
been  called  at  common  law  by  this,  that,  or  the  other  name.  The 
court  simply  has  to  determine  whether  the  rights  of  the  plaintiff  have 
been  violated  bj'  the  acts  of  the  defendant,  and,  if  so,  what  the  plain- 
tiff's measure  of  recovery  is." 

It  is  not  necessary  to  consider  the  other  allegations  of  error  in  this 
case.  The  judgment  is  reversed,  and  the  case  remanded,  with  direc- 
tions to  grant  a  new  trial,  and  to  overrule  the  demurrer  to  the  petition. 


PARKER  V.  PULLMAN  &  CO. 

Supreme  Court  of   New  York,  Appellate  Division,  January  3, 

1899. 

[36  App.  Div.   208. 1] 

Appeal  by  the  defendant,  John  Pullman  &  Co.,  from  an  interlocutory 
judgment  of  the  Supreme  Court  in  favor  of'  the  plaintiff,  upon  the  de- 
cision of  the  court  rendered  after  a  trial  at  the  Kings  County  Special 
Term  overruling  the  said  defendant's  demurrer  to  the  complaint. 

Harold  Nathan,  for  the  appellant. 

Charles  A.  Boston,  for  the  respondent. 

Goodrich,  P.  J. — The  demurrer  brings  up  two  questions  :  First,  the 
right  of  the  plaintiff  to  maintain  an  equitable  action  for  an  accounting 
under  the  terms  of  the  agreement  set  forth  in  his  complaint  ;  and, 
second,  the  defendant's  right  to  test  the  question  by  demurrer. 

The  complaint  alleges  that  the  plaintiff  is  a  resident  of  this  state  and 
the  defendant  corporation  a  foreign  corporation  ;  that  on  August  18, 
1892,  a  written  contract,  of  which  a  copy  is  annexed  to  the  complaint, 
was  executed  between  the  parties  to  this  action,  whereby  the  plaintiff 
and  the  defendant  Parker,  former  employees  of  the  corporation,  should 
continue  in  its  employ  until  the  same  was  terminated  on  sixty  days' 
written  notice ;  that  the  plaintiff  was  to  have  general  charge  of  the 
factories  of  the  corporation,  one  situated  in  Brooklj^n  and  the  other 
in  Baltimore,  Mar3-land,  to  engage  and  discharge  all  employees,  to  have 
charge  of  deliveries  of  goods  manufactured,  and  ro  perform  such  other 

1  S.  C.  56  N.  Y.  Supp.  734. 


PAKKKR    I'.    PULLMAN'    &    CO.  183 

services  as  might  he  required  of  liim  in  the  business  ;  that  the  defend- 
ant Parker  was  to  have  charge  of  all  other  matters  relating  to  the  office 
in  Brookljai ;  that  all  sales  of  goods  manufactured  at  the  factories  were 
to  be  made  through  the  cori^oration,  and  on  the  first  day  of  August  in 
each  year  an  account  of  stock  should  be  taken,  and  the  profits  of  the 
business  carried  on  at  said  factories,  if  any,  should  be  ascertained  and 
apportioned,  two-sixths  to  the  corporation,  three-sixths  to  the  plaintiff, 
and  one-sixth  to  the  defendant  Parker  ;  that  if  either  of  the  Parkers 
should  leave  the  employ  of  the  corporation,  and  an  account  of  stock  was 
not  taken  at  that  time  and  the  profits  of  the  business  ascertained,  either 
of  them  so  leaving  should  be  entitled  at  the  next  taking  of  stock  to  his 
timely  proportion  of  the  year's  profits  ;  that  no  part  of  the  profits  should 
be  withdrawn  by  either  of  the  Parkers  until  the  business  should  show  a 
profit  of  $i,ooo  over  all  advances,  debts,  and  liabilities,  including  the 
amount  then  invested  by  the  corporation  in  the  business,  the  value  of 
which  was  stated  to  be  $14,704.20;  that  the  plaintiff  had  the  privilege 
of  purchasing  the  business  and  property  upon  giving  sixty  days'  written 
notice,  and  paying  the  corporation  the  value,  as  shown  by  the  books  ; 
that  the  defendant  Parker  was  discharged  September  27,  1896  ;  that  on 
June  25,  1S97,  the  corporation,  without  written  notice,  closed  the  factory 
in  Brooklyn,  to  which  the  property  in  the  Baltimore  factor^'  had  been 
removed  in  June,  1896,  and  sold  all  the  stock,  goods  and  merchandise 
to  persons  unknown  to  the  plaintifi",  and  retained  the  moneys  received 
therefor  ;  that  there  has  never  been  any  ascertainment  or  apportionment 
whatsoever,  as  provided  in  the  written  agreement,  of  the  profits  of  the 
business,  and  that  the  plaintiff  has  repeatedly  since  his  discharge  de- 
manded a  full  and  complete  accounting  of  the  dealings  and  transactions 
in  said  business  and  a  payment  to  him  of  the  amount  due  him,  which 
the  corporation  has  refused  ;  that  the  corporation  has  collected  and  re- 
tained the  moneys  on  all  sales  of  merchandise,  and  has  taken  possession 
of  the  books  in  which  the  accounts  were  kept ;  ' '  and  that  the  said  ac- 
counts are  long  and  complicated,  and  no  settlement  thereof  has  been 
made  between  the  plaintiflfand  the  defendants,  "  although  the  profits  on 
such  sales  and  deliveries  were  large,  and  the  amount  is  unknown  to  the 
plaintiflf. 

The  contract  contains  the  following  provision:  "That  said  J.  Kos 
Parker  and  Leonard  S.  Parker  are  employees  of  said  John  Pullman  & 
Company  and  not  copartners  with  them.  That  they  have  no  control 
or  interest  in  said  business  except  as  employees,  and  it  is  expressl}' 
agreed  by  and  between  the  parties  hereto  that  the  interest  in  the  profits 
of  said  business,  which  is  to  be  set  apart  or  paid  to  either  of  said  Par- 
kers, is  for  salary  or  compensation  as  such  employees  of  John  Pullman 
&  Company. " 

The  plaintiff  demands  judgment  that  an  "account  may  be  taken  be- 
tween the  plaintiff  and  the  defendants  of  all  and  everj-  of  the  dealings 


184  EFFECT   IN    RELATION   TO  SUBSTANTIVE   LAW. 

and  transactions  of  the  said  business,  and  that  the  said  John  Pullman' 
&  Co.  pay  unto  the  plaintiff  the  amount  found  to  be  due  to  the  plaintiff 
under  said  accounting. " 

The  defendant  corporation  demurred  to  the  complaint,  the  court  over- 
ruled the  demurrer,  and  from  the  interlocutory  judgment  the  corpora- 
tion appeals.  .  . 

As  to  the  second  question, ^  the  right  of  the  defendant  to  test  juris- 
diction by  demurrer  depends  partly  vipon  §§481  and  1207  of  the  Code 
of  Civil  Procedure.  The  former  provides  that  a  complaint  must  con- 
tain, y?r.y/,  the  title  of  the  action,  the  name  of  the  court  and  the  names 
of  the  parties  ;  second,  a  statement  of  the  facts  constituting  the  cause 
of  action  ;  and  third,  "  a  demand  of  the  judgment  to  which  the  plain- 
tiflfsupposes  himself  entitled.  "  But  this  does  not  mean  that  the  plaintiff 
may  not  have  any  other  judgment  than  he  demands,  although  §  1207 
provides  that  where  there  is  no  answer  the  judgment  shall  not  be  more 
favorable  to  the  plaintiff  than  he  has  demanded  in  his  complaint.  This 
clearly  relates,  not  to  an  action  where  a  demurrer  has  been  interposed, 
but  to  one  where  a  judgment  is  to  be  entered  by  default ;  and  the 
reason  is  plain,  a  party  may  be  willing  to  permit  a  judgment  by  de- 
fault, not  more  favorable  than  that  which  is  demanded  in  the  com- 
plaint ;  but  when  he  demurs,  as  in  the  present  instance,  his  claim  is 
that  the  plaintiff  is  entitled  to  no  relief  whatever  on  the  allegations  of 
the  complaint,  for  the  demurrer  here  is  that  the  ' '  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action  ;  "  in  other  words, 
that  the  plaintiff  is  entitled  to  no  judgment  whatever. 

Under  our  present  system  of  pleading  a  plaintiff  is  entitled  to  such 
relief  as  the  allegations  of  the  complaint  justify,  irrespective  of  the 
prayer  for  judgment.'^ 

In  the  last  case,  Wetmore  v.  Porter,  the  court  said  (p.  80) :  "  It  has 
been  repeatedly  held,  under  the  Code,  that  if  the  facts  stated  in  a  com- 
plaint show  that  the  plaintiff  is  entitled  to  any  relief,  either  legal  or 
equitable,  it  is  not  demurrable  upon  the  ground  that  the  party  has  not 
demanded  the  precise  relief  to  which  he  appears  to  be  entitled." 

The  judgment  must,  therefore,  be  affirmed  with  costs. 

All  concurred. 

Interlocutory  judgment  affirmed,  with  costs,  with  leave  to  the  appellant 
to  withdraw  demian^er  atid  serve  a7iswer  within  twenty  days  on  payment 
of  the  costs  of  dcjHurrer  and  of  this  appeal. 

1  The  reasoning  of  the  court  on  the  first  question,  namely,  whether  the  plaintiff  had  a 
right  to  an  accounting  under  the  terms  of  the  agreement  set  forth  in  the  complaint,  is 
omitted.  The  answer,  after  a  review  of  the  authorities,  English  and  American,  is  in  the 
affirmative. 

2  Citing  Emery  v.  Pease,  20  N.  Y.  62 ;  Wright  v.  Wright,  54  N.  Y.  437  ;  Williams  v.  Slote, 
70  N.  Y.  601  ;  Wetmore  v.  Porter,  92  N.  Y.  76. 


DAVIS    V.    MOKKIS.  185 

DAVLS  v.   MORRIS. 

Court  of  Appeals  of  New  York,  June,  1867. 

[36  N.    V.  569.] 

Grover,  J. — This  action  was  brought  by  the  plaintiff  as  receiver,  to 
recover  rent  due  upon  a  lease  of  lot  212  Broadway,  in  the  city  of  New 
York,  given  by  the  plaintiff's  predecessor,  as  receiver,  to  Hudson,  one 
of  the  defendants.  The  plaintiff  claimed  to  recover  against  the  defend- 
ant Morris,  upon  equitable  grounds,  and  therefore  brought  the  case  to 
trial  at  a  Special  Term,  when  the  defendants  insisted  that  the  cause 
should  be  tried  by  jury.  This  was  denied  by  the  court,  and  the  cause 
tried  without  a  jury.  The  defendant's  counsel  now  insists  that  this 
was  a  waiver  by  the  plaintiff  of  any  right  of  recovery  upon  strictly  legal 
grounds,  and  that  unless  it  appears  upon  the  trial  that  the  plaintiff  was 
entitled  to  recover  in  equity,  the  judgment  dismissing  the  complaint 
should  be  affirmed,  although  it  appeared  that  the  plaintiff  was  entitled 
to  recover  at  law.  This  position  cannot  be  maintained.  The  Code, 
section  69,  abolishes  the  distinction  between  actions  at  law  and  suits 
in  equit}',  and  provides  that  thereafter  there  shall  be  in  this  State  but 
one  form  of  action  for  the  enforcement  or  protection  of  private  rights, 
etc.  Section  142  provides  that  the  complaint  shall  contain  a  plain  and 
concise  statement  of  the  facts  constituting  a  cause  of  action.  When, 
as  in  the  present  case,  the  complaint  states  facts  showing,  as  the  plain- 
tiff claims,  a  right  of  recovery  both  in  equity  and  at  law,  the  question 
as  to  how  the  case  is  to  be  tried  arises.  The  constitution,  article  2, 
section  2,  provides  that  the  trial  by  jury  in  all  cases  in  which  it  has 
heretofore  been  used,  shall  remain  inviolate  forever,  but  a  jury  trial 
may  be  waived  by  the  parties  in  all  civil  cases  in  the  manner  to  be  pre- 
scribed by  law.  At  the  time  of  the  adoption  of  the  constitution  all 
cases  at  common  law  were  tried  by  jury.  It  follows  that  any  party  has 
a  right  to  have  any  such  action  so  tried  at  the  present  time,  and  that 
he  cannot  be  deprived  of  this  right  if  defendant,  by  the  plaintiff  in- 
cluding in  his  complaint  a  statement  of  facts  arising  out  of  the  same 
transaction  showing  a  right  of  recovery  in  equity.  Suits  in  equity  were 
never  tried  by  jury  unless  an  issue  was  ordered  by  the  court  for  the 
trial  of  some  specific  fact.  Under  the  Code  it  is  clear  that  the  facts  en- 
titling the  party  to  both  kinds  of  relief  may  be  included  in  the  same 
complaint  and  both  attained  in  the  same  action,  when  arising  out  of 
the  same  transaction.  The  right  founded  upon  the  common  law  must 
be  tried  by  jury,  and  it  would  seem  to  follow  necessarily  that  the  en- 
tire cause  must  be  so  tried,  as  no  provision  is  made  for  two  trials  of  the 
issues  joined  in  the  same  action.  It  w^ould  follow  that  when  a  plaintiff 
moved  the  trial  of  a  cause  at  Special  Term,  and  the  defendant  demanded 
that  it  be  tried  by  jury,  that  the  judge  must  determine  whether  any  of 


186  EFFECT  IX   RELATION   TO  SUBSTANTIVE   LAW. 

the  grounds  upon  which  a  recovery  was  sought  were  such  as  at  the 
adoption  of  the  constitution  were  redressed  solely  by  an  action  at  law, 
and  if  so  should  direct  the  cause  to  be  tried  by  }nryr  at  circuit,  or  at  all 
events  should  refuse  to  try  the  cause  without  a  jury. 

But  should  the  judge  decide  erroneously  in  this  respect,  and  proceed 
to  try  a  cause  without,  which  should  be  tried  by  jury,  on  motion  of  the 
plaintiff,  it  would  not  operate  as  a  waiver  of  any  of  the  legal  rights  of 
the  plaintiff;  and  should  the  plaintiff  fail  to  show  himself  entitled  to 
any  equitable  relief,  but  should  show  a  right  to  legal  relief,  the  judge 
should  not  dismiss  the  complaint,  but  still  order  the  case  to  be  tried  by 
jury,  as  an  action  at  law.  If  the  above  views  are  correct,  it  follows  that 
it  must  be  determined,  in  the  present  case,  whether  the  plaintiff  could 
recover  the  rent,  or  anj'  portion  of  it,  of  Morris,  either  at  law  or  in 
equity.' 


COGSWELL  V.  NEW  YORK,   NEW  HAVEN  &  HARTFORD 
RAILROAD  COMPANY. 

Court  of  Appeals  of  New  York,  April  19,  1S87; 

[105  N.   v.  319.] 

Appeal  from  order  of  the  General  Term  of  the  Superior  Court  of  the 
city  of  New  York,  made  December  28,  1886,  which  affirmed  an  order  of 
Special  Term  granted  on  motion  of  the  plaintiff,  awarding  and  settling 
the  issues  herein  to  be  tried  by  a  jur3'.  The  order  \Aas  made,  as  stated 
therein,  "on  the  ground  that  a  trial  by  jur>'  is  a  matter  of  right  in  this 
action." 

The  nature  of  the  action  is  stated  in  the  opinion. 

He7try  H.  Anderson,  for  appellant. 

Lewis  Johnsto7i,  for  respondent." 

Andrews,  J. — The  complaint  demands  both  legal  and  equitable  relief. 
It  prays  judgment  for  damages  and  an  abatement  of  the  nuisance  com- 
plained of,  and  also  for  an  injunction  restraining  the  defendant  from 
continuing  the  nuisance  and  from  permitting  its  lands  to  be  used  for 
the  purpose  of  carr^-ing  on  anj'  operation  thereon  which  shall  injure  the 
plaintiff  in  the  enjo^-ment  of  her  property.  The  remedy  for  damages 
and  for  the  abatement  of  a  private  nuisance,  could  at  common  law  be 
obtained  in  a  legal  action,  technically  known  as  an  assise  of  nuisance. 
It  was  a  part  of  the  judgment  that  the  nuisance  be  abated.^     The  legal 

1  Only  so  much  of  the  case  is  given  as  refers  to  the  one  point.  The  judgment  below  was 
affirmed,  the  court  holding  that  plaintiff  was  not  entitled  to  recover  either  at  law  or  in 
equity. 

2  The  arguments  are  omitted. 

3  Citing  3  Black.  Com.  220 ;  Waggoner  v.  Jermaine,  3  Den.  306. 


COGSWKLL   V.    NEW   YORK,  KTC,    R.    R.    CO.  187 

remedy  by  writ  of  nuisance  for  the  recovery  of  damages  and  an  abate- 
ment of  the  nuisance,  was  retained  by  the  Revised  Statutes  '  and  though 
the  proceeding  by  writ  of  nuisance  has  been  abolished,  the  same  relief 
may  be  now  had  in  an  ordinary  civil  action  under  the  Code." 

It  was  held  in  Hndsoii  v.  Caryll^  that  as  by  the  common  law  an 
action  for  damages  and  for  the  abatement  of  a  nuisance  was  triable  by 
jur}',  the  defendant  could  not  be  deprived  of  the  right  to  a  jury  trial 
upon  these  issues,  although  the  plaintiff  in  his  complaint  also  demanded 
equitable  relief.  In  the  present  case  the  plaintiff  is  the  party  insisting 
upon  the  right  to  a  jury  trial,  notwithstanding  the  fact  that  she  framed 
her  action  asking,  not  simply  the  relief  which  could  be  obtained  by  a 
writ  of  nuisance  at  common  law,  but  also  relief  by  injunction,  which  a 
court  of  law  was  not  competent  to  grant.  The  constitution  *  secures  to 
a  party  the  right  to  a  jury  trial  in  all  cases  where  before  its  adoption 
this  mode  of  trial  was  used.  This  is  not  a  case  which  as  a  whole,  and 
in  both  aspects,  was  triable  by  jury  at  the  adoption  of  the  constitution, 
nor  is  it  one  where,  under  the  present  system,  the  plaintiff  is  compelled 
to  unite  her  claims  for  both  equitable  and  legal  relief  in  the  same  action. 
Rights  may  be  waived,  or  a  party  may  by  his  own  act  preclude  himself 
from  asserting  them.  We  think  it  is  a  reasonable  rule  and  one  in  con- 
sonance with  the  authorities,  that  where  a  plaintiff  brings  an  action  for 
both  legal  and  equitable  relief  in  respect  to  the  same  cause  of  action,  the 
case  presented  is  not  one  of  right  triable  by  jury  under  the  constitution, 
and  that  the  plaintiff,  by  such  election,  submits  to  have  the  issues  tried 
by  the  court,  or  by  the  court  with  the  aid  of  a  jurj',  as  the  court  in  its 
discretion  may  determine,  according  to  the  practice  in  equity  cases. ^ 
This  is  not,  we  think,  an  action  for  a  nuisance  within  section  968  of  the 
Code  of  Civil  Procedure.  The  action  of  nuisance  is  mentioned  in  the 
section  together  with  other  common  law  actions,  all  of  which  must,  the 
section  declares,  be  tried  by  jurj-,  unless  a  jury  is  waived  or  a  reference 
is  directed.  Reading  the  section  in  connection  with  section  1660,  it  is 
clear,  we  think,  that  an  equitable  action  to  restrain  the  continuance  of 
a  nuisance  demanded  is  not  action  for  nuisance  within  section  96S. 

This  leads  to  a  reversal  of  the  orders  of  the  Special  and  General 
Terms,  but  as  the  courts  below  decided  the  motion  on  the  question  of 
power  solely,  the  case  should  be  remitted  to  the  Special  Term  for  the 
exercise  of  its  discretion. 

All  concur.  Ordered  accordi?igly. 

1  2  Rev.  Stats.  332. 

2  Code  Pro.  g  454  ;  Code  Civ.  Pro.  g  1662 
344  N.  Y.  553,  554. 

4  I  2,  Art.  I. 

5  Citing  Davison  v.  Associates  of  the  Ferry  Co.,  71  N.  Y.  333  ;  N.  Y.  &  N.  H.  R.  R.  Co.  v. 
Schuyler,  34  id.  30,  46  ;  Baird  v.  Mayor,  etc.,  74  id.  382.  See  al.so  I<ynch  v.  M.  E.  R.  Co.  (1891) 
129  N.  Y.  274,  284. 


CHAPTER  III. 

IN  WHOSE  NAME  THE  CIVIL  ACTION   SHOULD  BE  BROUGHT. 
SECTION    I.      THE   TERMS    OF   THE   STATUTE. 

A.      The  Leading  Original  Enactments. 

New  York:  Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  as  otherwise  provided  in  §  113.     {Co.  Pro., 

1849,  §  III-) 

In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  by  the 
assignee  shall  be  without  prejudice  to  any  set-off  or  other  defence  exist- 
ing at  the  time  or  before  notice  of  the  assignment;  but  this  section  shall 
not  apply  to  a  negotiable  promissory  note  or  bill  of  exchange,  trans- 
ferred in  good  faith,  and  upon  good  consideration,  before  due.  {Co. 
Pro.,  1849,  §  112.) 

An  executor  or  administrator,  a  trustee  of  an  express  trust,  or  a 
person  expressly  authorized  by  statute,  may  sue  without  joining  with 
him  the  person  for  whose  benefit  the  suit  is  prosecuted.  {Co.  Pro., 
1849,  §  113.) 

NOTE.— EARLY    AMENDMENTS    IN    NEW    YORK. 

The  terms  and  the  section  numbers  of  the  enactments  of  the  New  York  Code  on  this 
point  were  fixed,  for  many  years,  by  the  amended  code  of  1849.  To  these  sections,  however, 
three  other  provisions  were  added  by  the  New  York  I,egislature  in  1851  and  1866,  and  have 
had  more  or  less  of  a  following  outside  New  York.  Their  terms,  and  the  terms  of  the  orig- 
inal enactments  of  1848,  apj>ear  in  the  following  note  ;  the  section  numbers  are  those  of  the 
code  of  1849. 

Sec.  III.  The  terms  of  the  code  of  1848  were  the  same  as  those  g^ven  in  the  text,  except- 
ing a  change  in  the  section  numbers,  then  §  91  and  g  93. 

In  1851  the  section,  as  given  in  the  text,  was  amended  by  the  addition  of  the  following 
clause  :  "  but  this  section  shall  not  be  deemed  to  authorize  the  assignment  of  a  thing  in  action 
not  arising  out  of  contract.''^ 

In  1S66  the  section  was  further  amended  by  the  addition  of  the  following  sentence:  "  But 
an  action  may  be  -maintained  by  a  grantee  of  land  in  the  name  of  a  grantor^  or  his  or  her  heirs 
or  legal  representatives,  when  the  grant  or  grants  are  void  by  reason  of  the  actual  possession  of 
a  person  claiming  under  a  title  adverse  to  that  of  the  grantor  at  the  time  of  the  delivery  of  the 
grant,  and  the  plaintiff  shall  be  allowed  to  prove  the  facts  to  bring  the  case  within  this  pro- 
vision.''''    (N.  Y.  L,a\vs,  i856,  p.  1S36,   §  iii.) 

Sec.  112.  The  terms  of  the  code  of  1848  lacked  the  concluding  phrase,  '^  transferred  in 
good  faith;  and  upon  good  consideration  before  due."  Thero  was  no  change  in  the  code  of 
1851. 

Sec.  113.    In  1851  this  sentriice  was  added,  the  whole  forming  §  113  of  the  code  as  amended 
^' A  trustee  of  an  express  trust,  within  the  meaning  of  this  section,  shall  be  construed  to  include 
\  a  person  with  whotn  or  in  whose  name  a  contract  is  made  for  the  benefit  of  another.'''' 
188 


TlIK   TERMS   OF   THE   STATUTE.  189 

Ohio  :  '  Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  as  otherwise  provided  in  section  twenty-seven. 
{Co.  Civ.  Pro.,  I  25.) 

In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  by  the 
assignee  shall  be  without  prejudice  to  any  set-ofF  or  other  defence  now 
allowed;  but  this  section  shall  not  apply  to  negotiable  bonds,  promis- 
sory notes,  or  bills  of  exchange,  transferred  in  good  faith  and  upon 
good  consideration,  before  due.     {Id.,  g  26.) 

An  executor,  administrator,  guardian,  trustee  of  an  express  trust,  a 
person  with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit 
of  another,  or  a  person  expressly  authorized  by  statute,  may  bring  an 
action  without  joining  with  him  the  person  for  whose  benefit  it  is  prose- 
cuted. Oflficers  ma}'  sue  and  be  sued  in  such  name  as  is  authorized  by 
law,  and  official  bonds  \\\z.y  be  sued  upon  in  the  same  wa}'.     {Id.,  §  27.) 


B.   The  Present  Terms  of  the  Statute. 


y 


New  York  :  Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  that  an  executor  or  administrator,  a  trustee  of  an  express 
trust,  or  a  person  expressly  authorized  by  statute,  may  sue,  without  joining  with 
him  the  person  for  whose  benefit  the  action  is  prosecuted.  A  person  with  whom 
or  in  whose  name  a  contract  is  made  for  the  benefit  of  another,  is  a  trustee  of  an 
express  trust,  within  the  meaning  of  this  section.     {Co.  Civ.  Pro  ,  §  449.)" 

Where  a  claim  or  demand  can  be  transferred,  the  transfer  thereof  passes  an 
interest,  which  the  transferee  may  enforce  by  an  action  or  special  proceeding, 
or  interpose  as  a  defence  or  counter-claim,  in  his  own  name,  as  the  transferor 
might  have  done;  subject  to  any  defence  or  counter-claim,  existing  against  the 
transferor,  before  notice  of  the  transfer,  or  against  the  transferee.  But  this 
section  does  not  apply,  where  the  rights  or  liabilities  of  a  party  to  a  claim  or 
demand,  which  is  transferred,  are  regulated  by  special  provision  of  law;  nor 
does  it  vary  the  rights  or  liabilities  of  a  party  to  a  negotiable  instrument,  which 
is  transferred.      (Co.  Civ.  Pro.,  §  1909.)' 

Missouri  ;  Every  action  shall  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  as  otherwise  provided  in  the  next  section;  but  this  section 
shall  not  be  deemed  to  authorize  the  assignment  of  a  thing  in  action  not  arising 
out  of  contract.     i^Rev.  Stats.,  1889,  §  1990.) 

An  executor  or  administrator,  trustee  of  an  express  trust,  or  a  person 
expressly  authorized  by  statute,  may  sue  in  his  own  name  without  joining  with 
him  \as  in  Xezu  York,  Co.  Pro.,  1851,  §  113].     {Rev.  Stats.,  1889,  §  1991.) 

California:  [As  in  Nezv  York,  Co.  Pro.  1849,  g§  iii,  112,  113,  VLntli  this 
addition  to  the  terms  of  §  113:]  "A  person  with  whom,  or  in  whose  name,  a 
contract  is  made  for  the  benefit  of  another  is  a  trustee  of  an  express  trust  within 
the  meaning  of  this  section."     {Co.  Civ.  Pro.,  §§  367,  368,  369.) 

1  The  intei-vening  codes,  those  of  Missouri,  California,  Kentucky,  Iowa,  Minnesota, 
and  Indiana,  as  first  enacted,  gtnerally  copy  the  terms  of  the  New  York  code  as  gfiven 
above.  When  they  depart  from  it,  the  change  is  either  evidently  immaterial,  or  has  had 
no  following. 

2  This  form  of  the  enactment  dales  from  1877. 

3  This  form  of  the  enactment  date.4  from  1880. 


190  IN    WHOSE   NAME   THE   ACTION    SHOUI^D   BE    BROUGHT. 

Kentucky:  Every  action  must  be  prosecuted  in  the  name  of  the  real  pirty 
in  interest,  except  as  is  provided  in  section  twenty-one.      (Civ.  Co.  Prac,  %  iS.) 

In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  by  the  assignee 
is  without  prejudice  to  any  discount,  set-off  or  defence  now  allowed;  and  if  the 
assignment  be  not  authorized  by  statute  the  assignor  must  be  a  party,  as 
plaintiff  or  defendant.  This  section  does  not  apply  to  bills  of  exchange,  nor  to 
promissory  notes  placed  upon  the  footing  of  bills  of  exchange,  nor  to  common 
orders  or  checks.      (Id.,  §  iQ-) 

■  If  the  right  of  the  plaintiff  be  transferred   or  assigned  during  the  pendency  of 

■  the  action.^'it  may  be  continued  in  his  name  ;  or  the  court  may  allow  the  person 
to  whom  the  transfer  or  assignment  is  made  be  substituted  in  the  action,  proper 
orders  being  made  as  to  security  for  the  costs.    {Id.,  %  20.) 

A  personal  representative,  guardian,  curator,  committee  of  a  person  of  unsound 
mind,  trustee  of  an  express  trust,  a  person  with  whom  or  in  whose  name  a  con- 
tract is  made  for  the  benefit  of  another,  a  receiver  appointed  by  a  court,  the 
assignee  of  a  bankrupt,  or  a  person  expressly  authorized  by  statute  to  do  so, 
may  bring  an  action  without  joining  with  him  the  person  for  whose  benefit  it  is 
prosecuted.     (/o?.,§2i.) 

Iowa  :  Every  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest  ;  but  an  executor  or  administrator,  a  guardian,  a  trustee  of  an  express 
trust,  a  party  with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit  of 
another,  or  party  expressly  authorized  by  statute,  may  sue  in  his  own  name, 
without  joining  with  him  the  party  for  whose   benefit   the  action   is  prosecuted. 

'   {Code,  1897,  §  3459)- 

Minnesota  :  \As  in  Neiv  York,  Co.  Pro,  1851,  §§iii,  112,  113,  with  a  slight 
change  in  phraseology.]      {Stats.  1894.  §§  5156,  5157,  5158)- 

Indl-^na:  ]^As  in  Neiv  York,  Co.  Pro.,  1851,  g§  in,  113,  omitting  §  112, 
and  zuith  this  addition  ^o  §  113  :  ]  "It  shall  not  be  necessary  to  make  an  idiot 
or  lunatic  a  joint  party  with  his  guardian  or  committee,  except  as  may  be  required 
by  statute."     (5^a^s..  1894,  §§  251,  252). 

Ohio  :  An  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest,  except  as  provided  in  sections  forty-nine  hundred  and  ninety-four  and 
forty-nine  hundred  and  ninety-five;  but  when  a  party  asks  that  he  may  recover 
by  virtue  of  an  assignment,  the  right  of  set-off,  counter-claim,  and  defence,  as 
allowed  by  law,  shall  not  be  impaired.      {Rev.  Stats.,  %  4993.) 

The  rule  prescribed  in  the  preceding  section  may  be  so  applied,  when  a 
person  forfeits  his  bond,  or  renders  his  sureties  liable,  that  any  person  injured 
thereby,  or  who  is  by  law  entitled  to  the  benefits  of  the  security,  may  bring  an 
action  thereon,  in  his  own  name,  against  the  person  and  his  sureties,  to  recover 
the  amount  to  which  he  is  entitled  by  reason  of  the  delinquency,  which  action 
may  be  prosecuted  on  a  certified  copy  of  the  bond;  and  the  custodian  of  the 
bond  shall  deliver  such  copy  to  any  person  claiming  to  be  so  injured,  on  tender 
of  the  proper  fee;  but  the  provisions  of  this  section  as  to  the  form  of  the  action 
shall  not  be  imperative,  if  provision  is  otherwise  made  by  law;  nor  shall  a  judg- 
ment for  one  delinquency  preclude  the  same  or  another  party  from  an  action 
on  the  same  instrument  for  another  delinquency.     {Rev.  Stats.,  §  4994.) 

An  executor,  administrator,  or  guardian,  a  trustee  of  an  express  trust,  a 
person  with  whom  or  in  whose  name,  a  contract  is  made  for  the  benefit  of 
another,  or  a  person  expressly  authorized  by  statute,  may  bring  an  action 
without   joining  with  him  the  person   for  whose   benefit   it  is  prosecuted;  and 


THE   TERMS   OE   THE   STATUTE.  191 

officers  may  sue  and  be  sued  in  such  name  as  is  authorized  by  law.     [Rev.  Stats., 

§  4995-) 

Oregon:  [As  in  Xczi.-  York,  Co.  Fro.  1851,  §§  iii,  112,  113,  ivith  a  slight 
change  in  phraseology.  \     (//ill's  Atmolated  Lazus,  1892,  §§  27,  28,  29.) 

Washington  :  Every  action  shall  \and  thence  as  in  Nezu  York,  Co.  Pro. 
1849,  §  m].     (Wash.  Co.  Pro.,  %  134.) 

An  executor  or  administrator,  a  guardian  of  a  minor  or  person  of  unsound 
mind,  a  trustee  of  an  express  trust,  or  a  person  authorized  by  statute,  may  sue 
■without  joining  the  person  for  whose  benefit  the  suit  is  prosecuted.  A  trustee  of 
an  express  trust  [and  thence  asinXezv  York,  Co.  Pro.  1851,  §  113].  (/d.,  §  135.) 
Nebraska:  [As  in  Ohio,  Co.  Civ.  Pro.,  1853,  §§25,  26,  27,  with  this  sec- 
tion, §  5619,  in  addition  between  §  26  and  §  27  of  that  act]  :  "The  assignee  of 
a  thing  in  action  may  maintain  an  action  thereon,  in  his  own  name  and  behalf, 
without  the  name  of  the  assignor."  (Neb.  Comfl'd  Stats.,  1897,  §§5618,  5619, 
5620,  5621.] 

Wisconsin:  [As  in  A'ezv  i'ork,  Co.  Pro.,  1S51,  §§iii,  112,  113.]  (IVz's. 
Stats.,  1898,  §§2605,  2606,  2607.] 

Kansas  :  [As  in  uVeza  York,  Co.  Pro.,  1851,  §iii-]  (Kan.  Gen.  Stats.,  1897, 
Co.  Civ.  Pro.,   g  20.) 

In  the  case  of  an  assignment  [.-Is  in  Ohio,  Co.  Civ.  Pro.,  1853,  §§26,  27.] 
(/d.,  §§21,   22.) 

Nevada  :  Every  action  shall  [and  thence  as  in  A'ezv  York,  Co.  Pro.,  1B49, 
§§iii,  112,  113.]     (AVr/.  Gen.  Stats.,  1885,  §3026.) 

In  the  case  of  an  assignment  [as  in  A'eza  York,  Co.  Pro.,  1851,  §§  112,  113.] 
{Id.,   §§3027,  3028.) 

North  Dakota:  [.4s  in  Nezu  York,  Co.  Pro.,  1849,  §iii.]  (Rev.  Codes, 
1895,   §5221.] 

In  the  case  of  an  assignment  [as  in  A'cw  York,  Co.  Pro.,  1S51,  §§  112,  113.] 
{Id.,  §§5222,  5223.) 

South  Dakota:  [As  in  Xezc  York,  Co.  Pro.,  1851,  §§iii,  112,  113,  with. 
the  addition  of  the  New  York  amendment  of  1S66  to  g  in,']  (.Annot'd  Stats., 
1899,  gg  6070,  6071,  6072.) 

Idaho:  [.4s  in  Nezu  York,  Co.  Pro.,  §§iii,  112,  113,  with  slight  verbal 
changes.]      (Rev.  Stats.,  §§4090,  4091,  4092.) 

Montana:  [As  in  Nezu  York,  Co.  Civ.  Pro.,  1877,  §449-]  (Mont.  Co.  Civ. 
Pro.,   §570.) 

In  the  case  of  an  assignment  of  a  thing  in  action  [as  in  A^czu  York,  Co.  Pro., 
1849,  §112.]      (/rf.,§57i.) 

Arizona:  [As  in  Nezu  York,  Co.  Pro.,  1849,  §§  m,  112.]  (Rev.  Stats., 
1887,  g§68o,  681.) 

Suits  for  the  recovery  of  personal  property,  debts  or  damages,  and  suits  for 
title  or  for  the  possession  of  lands,  or  for  any  right  attached,  or  growing  out  of 
the  same,  or  for  any  injury  or  damage  done  thereto,  may  be  instituted  by  execu- 
tors, administrators  or  guardians  appointed  in  this  territory,  in  like  manner  as 
they  could  have  been  by  their  testator  or  intestate.     (Id.,  §678.) 

North  Carolina  :  [As  in  Nezu  York,  Co.  Pro.,  1851,  §§  iii,  112,  113,  with 
this  modification  of  the  New  York  amendment  of  1866  to  g  in] ;  "  But  an  action 
may  be  maintained  by  a  grantee  of  real  estate  in  his  own  name,  whenever  he  or 

1  In  this  addition  the  South  Dakota  statute  omits  the  phrase,  "or  his  or  her  legal  repre- 
sentative." 


192  IN   WHOSE   NAME   THE   ACTION   SHOULD   BE    BROUGHT. 

any  grantor  or  other  person  through  whom  he  may  derive  title,  might  maintain 
such  action,  notwithstanding  the  grant  of  such  grantor  or  other  conveyance  be 
void,  by  reason  of  the  actual  possession  of  a  person  claiming  under  a  title  adverse 
to  that  of  such  grantor,  or  other  person,  at  the  time  of  the  delivery  of  such  grant, 
or  other  conveyance. "     {Code,  1883,  %%^^^,  i79) 

South  Carolina:  ^As  in  Nezv  York,  Co.  Pro.,  1851,  §§  m,  ii2,  113,  with 
the  addition  of  the  amendment  of   1866   to    §111.]      {Rev.  Stats.,    1893,    §§132. 

133.    I34-) 

Arkansas  :  Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  as  provided  in  sections  5625,  5626  and  5628.  {Dig.  Stats., 
1894,  §  5623.) 

Where  the  assignment  of  a  thing  in  action  is  not  authorized  by  statute,  the 
assignor  must  be  a  party,  as  plaintiff  or  defendant.     {Id.,  §  5624.) 

Where  the  right  of  the  plaintiff  is  transferred  or  assigned  during  the  pendency 
of  the  action,  it  may  be  continued  in  his  name,  or  the  court  may  allow  the 
person  to  whom  the  transfer  or  assignment  is  made  to  be  substituted  in  the 
action,  proper  orders  being  made  as  to  security  for  the  costs.     {Id.,  %  5625.) 

An  executor,  administrator,  guardian,  trustee  of  an  express  trust,  a  person 
with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another,  or 
the.  State,  or  any  officer  thereof,  or  any  person  expressly  authorized  by  the 
statute  to  do  so,  may  bring  an  action  without  joining  with  him  the  person  for 
whose  benefit  it  is  prosecuted.     {Id.,  §  5626.) 

Wyoming  :  \^As  in  Ohio,  Rev  Stats.,  §§  4993,  4994,  4995,  with  this  addition 
to  the  terms  of  §  4994]:  "A  county  may  sue  in  its  corporate  name  upon  any 
official  bond  of  any  of  its  officers.  "    {Wyo.  Rev.  Stats.,  1887,  §§  2382,  2383,  2384.) 

Utah  :  Every  action  must  [as  in  Nezv  York,  present  form,  Co.  Civ.  Fro. 
§449].      {Rev.  Stats.,  1898,  §  2902.) 

In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  by  the  assignee 
is  without  prejudice  \and  thejice  as  iti  A'ezv  York,  Co.  Pro.,  1849,  §  112].  {Id., 
§  2903.) 

Colorado  :  Every  action  shall  [and  thence  as  in  New  York,  Co.  Pro.,  1849, 
§§  III,  112].     {Colo.  Co.  Civ.  Pro.,  §§  3,  4.) 

An  executor  or  administrator,  or  trustee  of  an  express  trust  \and  thence  as  in 
Nezu  York,  Co.  Pro.,  1851.  §  113].      {Id.,  §  5.) 

Connecticut  :  An  executor,  administrator,  or  trustee  of  an  express  trust 
may  sue  or  be  sued,  without  joining  the  persons  represented  by  him  and  bene- 
ficially interested  in  the  suit.     {Conn.  Gen.  Stats.,  1888,  §  886.) 

Oklahoma:      [As   in   A'eiu    York,    Co.    Pro.,    1851,    §    iiij.     {Stats.,    1893, 

§3898.) 

In  the  case  of  an  assignment  [as  in  Ohio,  Co.  Civ.  Pro.  1853,  §§  26,  27.]. 
(7rf.,  §§3899,  3900.) 

New  Mexico  :  Every  action  shall  [as  in  Neiv  York,  Co.  Pro.,  1849,  §§  iii, 
113,  §  112  omitted'l.     {CompVd.  Laws,  1897,  sub-sees.  2  and  3,  §  2685.) 


THK    OPERATION'   OK   THIi   STATUTE.  i93 


SECTION  II.       THE  OPERATION  OF  THE  STATUTE. 
NOTE. 

For  the  most  part,  the  question,  in  any  given  case,  Who  is  the  real 
party  in  interest  ?  finds  its  answer  in  substantive  law,  rather  than  in 
procedure;  for  the  conditions  and  limitations  which  meet  the  pleader 
here  are,  in  the  general  run  of  cases,  just  those  conditions  and  limi- 
tations which  attach  to  the  primary  right.  But  there  are,  nevertheless, 
many  cases  where  the  question  stands  in  a  special  relation  to  the 
law  of  procedure.  These  cases  group  themselves  under  the  following 
heads: 

A.  The  nature,  in  general,  of  the  interest  required  to  make  one  a 
"real  party  in  interest  "  within  the  meaning  of  the  codes. 

B.  The  real  party  in  interest  when  a  contract  is  made  with  one  for 
the  benefit  of  another. 

1 .  When  the  party  with  whom  the  contract  is  made  is  the  agent 

of  an  undisclosed  principal. 

2.  When  the  party  with  whom  the  contract  is  made  contracts 

ostensibly  for  the  benefit  of  a  third  person,  stranger  to  the 
contract. 

C.  The  real  party  in  interest  when  a  chose  in  action  is  assigned. 

1.  When  the  assignee  has  the  full  legal  title,  but  is  without  any 

beneficial  interest. 

2.  When  the  assignee  has  the  beneficial  interest,  but  is  without 

the  legal  title. 

D.  The  real  party  in  interest  under  special  statutory  relations. 

E.  When  the  action  may  be  brought  in  the  name  of  one  who  is  not 
a  real  party  in  interest. 

1.  The  trustee  of  an  express  trust. 

2.  Other  instances. 


^~  ^ 


IN    WHOSE    NAME    THE   ACTION   SHOULD    BE    BROUGHT. 


The  nature,  in  general,  of  the  interest  required  to  make  one  "  a  real 
tarty  in  interest"  ivithin  the  meanijjg  of  the  codes. 


DENNISON  V.  SOPER. 

Supreme  Court  of  Iowa,  December  Term,  1871. 

[33  Iowa,  183.] 

Plaintiff  alleges,  in  his  petition,  that  on  the  22nd  day  of  October, 
1869,  he  executed  a  joint  and  several  promissory  note  with  the  de- 
fendants, of  which  the  following  is  a  copy: 

gj.  QQQ  Center  Point,  October  22,  1869. 

I         "One   year  after  date  we  promise  to  pay   to  the  order  of  John  Bell  &  Co., 
|i,ooo  with  ten  per  cent,  interest,  payable  at  Center  Point.     Value  received. 
JXo  ■     1     (U.  S.  Stamp.  )  C.   SoPER. 

^J}  I    I      50  Cents.      I  E.  W.  Stewart. 

4-  "    '"    " 


B.  W.  Milliard. 
Jonathan  Dennison. 


"Renewed  December  21,  1870. 

R.   D.   Stephens. 


A 


Plaintiff   further  alleges  that  he  believes  the  note  is    in    the   pos- 
session of  the  payees;  that  he  signed  the  note  as  surety  only;  that 
the  same  has   not   been  paid;    that  the  plaintiff  has  not  been  indem- 
/^      nified    or   secured  against   loss  by    pa^^ment    thereof  by    him.     It    is 
■    "^  -v       further  alleged    that   the    defendants  (the  other   makers   of  the  note) 
^^  J^       "have    disposed    of    their    property    in  part,   with   intent  to  defraud 
\P"(^.     their  creditors,   and  are    now  attempting    to    and    are   about    to   dis- 
-5    (yr^a/^I>pse  of  the   balance   of  their   property  with   intent   to   defraud  their 
^       V.  /Vreditors,   and  that  the  plaintiff  is  in  imminent  danger  of  being  left 
j^''  1)^  ■^'^o  pay  said  note,   and  by  the  said  fraudulent  acts  of  defendants  en- 
:  J'^Vp)^  Jtirely  lose  said  amount;  and,  further,  that  if  he  is  delayed  until  he  can 
/f/|     ^procure  said  note  from  the   payees,    said   defendants   will   have   their 
j/1    ^y     property  fraudulently  disposed  of  and  beyond  the  reach  of  legal  process. 
^    *b>  The  action  was  commenced  on  the  2nd  day  of  INIarch,  1S70,  more  than 

J^^  seven  months  before  the  maturity  of  the  note,  the  petition  alleging  that 

^    ',  "  nothing  but  time  is  wanting  to  fix  an  absolute  indebtedness.  "     The 

o/"^  petition  asked  a  writ  of  attachment  against  the  property  of  the  defend- 

ants,  and  that  plaintiff  have  judgment  for  the  amount  of  the  note  with 
interest  and  costs. 

The  material  averments  of  the  petition  are  all  denied  by  the  answer. 
The  cause  was  tried  by  the  court  upon  the  following  evidence,  viz. : 
The  original  note  with  a  renewal  written  across  the  face;  an  indorse- 
ment in  blank  by  John  Bell  &  Co.;  an  indorsement  by  R.  E.  Graves, 
president  of  P'irst  National  Bank  of  Dubuque,  Iowa,  to  R.  D.  vStephens 


DENNISON   V.    SOPER.  195 

for  collection,  and  the  testimony  of  the  plaintiff  as  follows:  "  I  signed  .  >,  P 
the  note  in  evidence  as  security  only,  l  have  not  been  in  any  manner  CJ^  ^ 
secured  or  indemnified  for  signing  said  note.  I_paid_said_note_about  \)f?^^ 
tJTP^fir^f  of  Tnnnarv.  jS^^.  and  have  received  nothing  for  such  pay-  /J7 
ment."  '1  hereupon  the  cou-t  rendered  judgment  for  plaintiff  for  the  r^ ^ 
amount  of  the  note  with  interest  and  costs,  to  which  defendants  ex-  ^^V**^*^ 
cepted  and  appeal. 

/.  M.  Preston  &  Son,  for  the  appellants. 

Thompson  &  Davis,  for  the  appellee. 

Miller,  J.— From  the  record  it  appears  that  the  plaintift  was  a  joint 
maker,  with  defendants,  of  the  note  upon  which  the  action  is  based. 
As  between  plaintiff  and  defendants,  he  was  surety  only.  He  does  not 
claim  to  own  or  have  any  property  in  the  note,  but  bases  his  right  of 
action  against  his  co-makers  solely  upon  the  facts  that  he  was  only  a 
surety  for  them;  that  he  was  not  indemnified  against  loss  in  case  he 
paid  the  note;  that  the  defendants  have  disposed  of  part  of  their 
property  with  intent  to  defraud  their  creditors,  and  are  about  to  dispose 
of  the  balance  with  like  intent:  and  that  after  the  action  was  brought 
and  before  judgment,  he  paid  the  note. 

We  are  unable  to  discover  upon  what  principle  the  action  is  main- 
tainable. The  statute  requires  that  "  every  action  must  be  prosecuted 
in  the  name  of  the  real  party  in  interest, "  except  in  certain  specified 

cases.  ^ 

The  "real  party  in  interest  "  is  the  party  having  the  beneficial  in-  > 
terest;  the  party  having  the  beneficial    ownership,  in   this   case,    the 
holder  of  the  note  for  value. " 

The  plaintiff  had  not,  nor  did  he  claim  to  have,  any  interest  in  the 
note.  The  exceptions  to  the  above  rule  are  specified  in  section  2758  of 
the  Revision  as  follows:  "An  executor  or  an  administrator,  a  guardian, 
a  trustee  of  an  express  trust,  a  party  with  w^hom  or  in  whose  name  a 
contract  is  made  for  the  benefit  of  another,  or  a  party  expressly  author- 
ized by  statute,  may  sue  in  his  own  name,  without  joining  with  him  the 
party  for  whose  benefit  the  suit  is  prosecuted." 

Now  it  is  clearly  manifest  that  the  plaintiff  occupied  neither  of  the 
relations  enumerated  in  the  above  provision.  He  was  neither  the  real 
party  in  interest  nor  the  trustee,  agent,  or  other  representative  of  the 
real  party.  In  some  one  or  other  of  these  capacities  he  must  sue,  if  at 
all.  He  must  have  either  the  legal  title  or  the  beneficial  interest  to 
entitle  him  to  sue  on  the  note.     {Cottle  v.  Cole  &  Cole,  20  Iowa,  485.) 

A  surety  has  no  right  of  action  against  his  principal,  in  respect  to 
the  debt  for  which  he  is  surety,  until  he  has  paid  such  debt  for  his 
principal.  Walker  v.  Lathrop,  6  Iowa,  516.  Then,  and  not  until  then, 
does  the  surety  have  a  cause  of  action  against  the  principal.     Chapter 

1  Revision  of  i860,  ?  2757. 

"2- Citing  Conyngham  v.  Smith,  16  Iowa,  471;  Cottle  f.  Cole  &  Cole,  20  id.,  485;  Rice  v. 
Saverj'.  22  id.,  470. 


196  IN  WHOSE   NAME   THE   ACTION   SHOULD   BE    BROUGHT. 

75  of  the  Revision  of  i860  provides  a  remedy  for  the  benefit  of  sureties 
where  they  apprehend  that  the  principal  is  about  to  become  insolvent, 
etc.,  ''  and  a  right  of  action  has  accrued  on  the  contract,''  but  we  have 
no  statutory  provision  affording  such  remedy  before  any  right  of  action 
has  accrued.  And,  with  a  single  exception  in  the  statute,  the  real  party 
in  interest,  or  the  party  having  the  legal  title  to  a  chose  in  action,  can 
not  do  so  until  the  maturity  of  his  claim  or  cause  of  action.  Whitney 
et  al.  V.  Bird  et  al.,  n  Iowa,  407.  So  that  the  lawful  holders  of  the 
note  in  this  case  could  not  have  maintained  an  action  at  the  time  this 
suit  was  brought,  except  for  the  purpose  of  availing  themselves  of  the 
benefit  of  the  provisional  remedy  of  attachment,  as  provided  in  section 
3178  of  the  Revision,  and  this  section  restricts  the  cases  to  those  where 
' '  nothing  but  time  is  wanting  to  fix  an  absolute  indebtedness. ' '  In  the 
case  before  us,  there  was  no  indebtedness  whatever  existing  between  the 
plaintiff"  and  the  defendants.  The  plaintiff  held  no  claim  against 
defendants  on  the  note  which  time  would  mature  or  render  absolute. 
The  claim  itself  only  came  into  being  when  the  plaintiff  paid  the  note, 
which  was  after  suit  brought.  Whether  there  ever  would  become  an 
indebtedness  at  all  depended  upon  this  contingency.  There  was  no 
previous  indebtedness  which  time  alone  would  render  absolute.  The 
subsequent  act  ofpaytnent  by  plaintiff  was  necessary,  not  only  to  render 
the  claim  absolute,  but  to  create  an  indebtedness. 

We  are  therefore  of  the  opinion  that  the  action,  at  the  time  it  was 
brought,  was  not  maintainable  in  the  name  of  the  plaintiff,  though  it 
might  have  been  in  the  names  of  the  holders  of  the  note;  and  the  pay- 
ment of  the  note  by  plaintiff  ten  months  after  the  suit  was  commenced 
did  not  entitle  him  to  judgment.  Reversed. 


THOMPSON    V.    FARGO. 

Court  of  Appeals  of  New  York,  April  16,  1872. 

[49  N.   Y.   188.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court, 
affirming  a  judgment  in  favor  of  plaintiff  entered  upon  the  report  of  a 
referee.^ 

This  action  was  brought  to  recover  damages  for  an  alleged  failure  of 
defendant  to  deliver  a  package  of  United  States  Treasury  notes  received 
by  it  for  transportation. 

Facts  found  by  the  referee  :  That  the  defendant,  the  American  Ex- 
press Company,  is  a  joint-stock  company,  consisting  of  more  than  seven 
members,  and  is  engaged  in  the  express  business  as  common  carriers, 
whose  principal  office  is  in  the  city  of  New  York. 

1  Reported  below,  58  Barb.,  575  ;  44  How.  Pr.,  176. 


THO.MPSOX    V.    FARGO.  197 

On  or  about  the  nth  day  of  August,  1865,  the  American  Express 
Company  received  from  the  United  States  Express  Company,  at  Deca- 
tur, in  the  State  of  Indiana,  a  package,  containing  U.  S.  compound 
interest  notes  and  7.30  treasury  notes  to  the  amot:nt  of  $660.63,  together 
with  the  papers  discharging  John  and  William  White  from  service  in 
the  army  of  the  United  States. 

The  said  package  was  addressed  as  follows  :  ' '  By  the  United  States 
Express  Company,  $660.63,  John  and  William  White,  care  Captain 
James  K.  Martin,  Bunton  House,  Terre  Haute,  Indiana." 

The  package  was  delivered  to  the  United  States  Express  Company  by 
plaintiff  at  Springfield,  111.,  and  a  receipt  taken. 

The  American  Express  Company  conveyed  it  to  the  place  of  destina- 
tion without  delay.  Diligent  search  and  inquiry  were  made  for  the 
consignees,  but  they  could  not  be  found  or  heard  from. 

The  contents  of  the  package  was  the  back  pay  of  the  said  John  and 
William  White,  as  soldiers  in  the  army  of  the  United  States,  and  their 
discharge  papers  from  the  ser\'ice,  and  a  letter  from  the  plaintiff. 

The  Whites  had  emplo^-ed  the  plaintiff  as  their  agent  to  collect  for 
them  the  back  pay  in  question  from  the  United  States  government. 

The  enclosure  in  the  package  was  the  proceeds  of  a  check  received 
by  plaintiff  from  the  government  agent  at  Springfield,  111.,  for  such 
back  pay. 

The  plaintiff  demanded  the  package  in  question  from  James  C. 
Fargo,  the  treasurer  of  the  defendant,  at  the  city  of  New  York,  whc 
refused  to  deliver  the  same  to  him. 

Hooper  C.  Vafi  Vorst,  for  the  appellant. 

Isaac  Edwards,  for  the  respondent.' 

Peckham,  J. — To  sustain  an  action  against  a  common  carrier  for 
failing  to  deliver  goods,  the  plaintiff  must  be  the  owner,  or  have  some 
special  interest  in  them.-     Prima  facie,  the  consignee  is  the  owner. 

If  this  had  been  a  sale  of  goods  by  the  consignor,  ordered  by  the 
consignee,  without  stating  in  what  waj^  or  manner  to  send  them,  but 
only  where,  the  consignor  would  have  had  sufficient  title  to  maintain 
the  action — because  the  title  in  such  case,  as  a  general  rule,  would  not 
pass  by  the  mere  delivery-  to  the  carrier.  In  this  case,  however,  the 
plaintiff  never  owned  the  money  ordered  to  be  sent  to  the  consignee, 
and  had  no  special  interest  in  it.  He  was  a  mere  agent.  Hence  if  he 
simply  fulfilled  the  orders  of  the  owners  and  sent  the  money  to  the 
consignee  by  a  suitable  and  proper  conveyance,  his  duties  and  liabili- 
ties were  discharged.  He  then  had  no  further  right  or  interest  in  the 
matter. 

The  action  was  brought  and  tried  upon  the  assumption  that  the 
plaintiff  properh*  collected  and  sent  the  money  due  from  the  govern- 
ment to  the  Whites.     There  was  no  allegation  or  suggestion  that  he 

IThe  arguments  are  omitted. 

S  Citing  Krulder  v.  Ellison,  47  N.  Y.,  36;  Green  -■.  Clarke,  12  N.  Y.,  343 


198 


IN    WHOSE    NAME    THE    ACTION    vSHOULD    BE    BROUGHT. 


had  not  sent  the  money  he  received  by  the  usual  and  proper  mode,  that 
he  had  not  fulfilled  the  directions  of  the  Whites,  that  he  was  not 
authorized  by  them  to  do  preciseh'  what  he  did — the  referee  has  sub- 
stantially so  found  as  a  matter  of  fact,  and  there  is  no  exception  to  anj' 
of  his  findings  of  fact.  It  is  too  late  here  for  the  plaintiff  to  attempt 
to  vary  these  findings  of  fact  to  sustain  his  judgment. 

It  is  the  right  and  interest  of  this  defendant  to  see  that  the  package 
is  delivered  to  none  but  the  true  owner.  A  wrongful  recovery-  against 
this  defendant  wnll  afford  it  no  defence  as  against  the  true  owner  or 
their  representatives. 

This  is  not  a  case  of  a  fictitious  consignee.  The  Whites  were  alive 
and  in  the  civil  war.  This  was  their  pay,  and  if  they  have  died  since 
this  proceeding,  that  gives  no  right  to  this  plaintiff  to  sue  upon  these 
facts.  It  follows  that  the  referee  erred  in  finding  for  the  plaintiff,  and 
the  judgment  for  the  General  Term  affirming  that  judgment  mvist  be 
set  aside  and  a  new  trial  granted,  costs  to  abide  event. 

All  concur,  except  AllEn,  J.,  not  sitting,  and  Rapallo,  J.,  not 
voting.  Judgment  reversed. ^ 


ALBANY  AND  RENSSELAER  COMPANY 


LUNDBERG. 


^' 


i 


Supreme  Court  of  the  United  States,  April  25,  1887. 

[121  U.  S.  451.] 

This  was  an  action  at  law  on  a  contract.  Verdict  for  the  plaintiff, 
and  judgment  on  the  verdict.  The  defendant  sued  out  this  writ  of 
error.     The  case  is  stated  in  the  opinion  of  the  court. 

Mr.  Edwin  Country ma7i,  for  plaintiff  in  error. 

Mr.  Everett  P.   Wheeler,  for  defendant  in  error. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  action  was  brought  by  Gustaf  Lundberg,  an  alien  and  a  subject 
of  the  Kingdom  of  Sweden  and  Norway,  residing  at  Boston  in  the  State 
of  Massachusetts,  against  the  Alban}^  and  Rensselaer  Iron  and  Steel 
Company,  a  corporation  of  the  State  of  New  York,  upon  two  contracts 
for  the  sale  and  purchase  of  Swedish  pig  iron,  the  first  of  which  was 
as  follows: 

"  N.  M.  HOGLUND'S  SONS  &  CO.,  STOCKHOLM; 
"Gustaf  Lundberg,  Successor  to  Nils  Mitander: 
"38  KiLBY  Street,  Boston,  February  10,  1S80. 
"  I,  Gustaf  Lundberg,  agent  for  N.  M.  Hoglund's  Sons  &  Co.  of  Stockholm, 
agree  to  sell,  and  we,  Albany  and  Rensselaer  Iron  and  Steel  Co.,  Troy,  N.  Y,, 
agree  to  buy  the  following  Swedish  charcoal  grey  pig  iron,  viz. :  500  tons  of  brand 
NBGPH,  at  a  price  of  forty-eight  ($48)  dollars,  American  gold,  per  ton  of  2240 
lbs.,  delivered  on  wharf  at  New  York,  duty  paid;  said  iron  to  be  in  accordance 

1  See  also  Thompson  v.  Faigo  (1S75),  63  N.  Y.,  479. 


ALBANY    AND    KICNSSHLAER    COMPANY    "'.    LUXUHERCl.  yj[) 

with  an  analysis  furnished  in  Gustaf  Lundberg's  letter  of  Gth  February.  Pay- 
ment in  gold  in  Boston  or  New  York  funds  within  30  days  from  date  of  ship's 
entry  at  custom-house.  Shipment  from  Sweden  during  the  season,  say  May 
next  or  sooner  if  possible.  The  above  quantity  hereby  contracted  for  to  be 
subject  to  such  reduction  as  may  be  necessitated  by  natural  obstacles  and  un- 
avoidable accidents.  The  seller  not  accountable  for  accidents  or  delays  at  sea. 
Signed  in  duplicate. 

■'Accepted,  Albany  &  Rensselaer  Iron  &  Steel  Co." 

The  other  contract  difTered  only  in  being  for  the  sale  and  purchase  of 
"300  tons  of  brands  SBVE  and  NBBBK. " 

The  analysis  referred  to  in  both  contracts  showed,  in  the  first  brand 
-03,  and  in  the  two  other  brands  .024,  of  one  per  cent  of  phosphorous. 

The  above  amount  of  iron  was  made  in  Sweden,  that  of  the  first 
brand  of  the  Pershytte  furnace  of  the  Ranishyttan  Iron  Works,  out  of 
ore  from  the  Pershytte  mines,  and  that  of  the  two  other  brands  at  the 
Svana  Iron  Works;  was  brought  and  shipped  from  Stockholm  by  N.  M, 
Hoglund's  Sons  &  Co.  in  May,  1S80;  arrived  at  New  York,  in  June, 
1880,  and  was  thence  taken  to  the  defendant's  works  at  Troy.  An 
anah'sis  there  made  by  the  defendant's  chemist  showed  in  the  three 
brands  respectiveh'  .047,  .042,  and  .049,  of  one  per  cent  of  phosphorous. 
The  defendant  therefore  refused  to  take  the  iron,  and  returned  it  to  the 
plaintiff,  who  afterwards  sold  it  for  less  than  the  contract  price,  brought 
this  action  to  recover  the  difference,  and  obtained  a  verdict  and  judg- 
ment for  upwards  of  $15,000.  The  defendant  sued  out  this  writ  of 
error. 

The  first  question  presented  b}-  the  bill  of  exceptioiLS  is,  whether  this 
action  can  be  maintained  in  the  name  of  Lundberg,  or  should  have  been 
brought  in  the  name  of  his  principals,  N.  M.  Hoglund's  Sons  &  Co. 

The  paper  upon  which  each  of  the  contracts  in  suit  is  written  has  at 
its  head,  besides  the  name  of  that  firm,  the  name  of  "  Gustaf  Lundberg, 
successor  to  Nils  ^litander,  "  followed  by  the  street  and  number  of  his 
office  in  Boston.  The  contract  it.self  begins  with  a  promise  by  him  in 
the  first  person  singular,  "  I,  Gustaf  Lundberg,  agent  for  N.  M.  Hog- 
lund's Sons  «&  Co.,  agree  to  sell ;"  the  description  added  to  his  name  in 
this  clause  is  the  only  mention  of  or  reference  to  that  firm  in  the  con- 
tract ;  his  promi.se  is  not  expressed  to  be  made  b^-  them  as  their  agent, 
or  in  their  behalf ;  and  the  agreement  is  signed  by  him  with  his  own 
name  merely. 

There  are  strong  authorities  for  holding  that  a  contract  in  such  form 
as  this  is  the  personal  contract  of  the  agent,  upon  which  he  may  sue 
as  well  as  be  sued,  in  his  own  name,  at  common  law.' 

In  Gadd  v.  Houghton,  i  Ex.  D.  357,  the  contract  which  was  held  not 
to  bind  the  agent  personall}'  was  expressed  to  be  made  ' '  on  account  of 

1  Citing  Kennedy  v.  Gouveia.  3  D.  &  R.  503  ;  Parker  v.  Winlow,  7  E.  &  E.  942  ;  Dutton  v. 
Marsh,  I,-  R-  6  Q.  B.  361  ;  Bufifum  v.  Chadwick,  8  Mass.  103 ;  Packard  v.  Nye,  2  Met.  47. 


^ 
■\^ 


200 


IN   WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT 


the  principals ; "  and  in  Oehlricks  v.  Ford,  23  How.  49,  in  which  the 
contract,  which  was  held  to  bind  the  principal,  more  nearly  resembled 
that  before  us  than  in  any  other  case  in  this  court,  the  important  ele- 
ment of  a  signature  of  the  agent's  name,  without  addition,  was  wanting. 

But  it  is  unnecessary  to  express  a  definite  opinion  upon  the  question 
in  whose  name,  independently  of  any  statute  regulating  the  subject, 
this  action  should  have  been  brought. 

The  Code  of  Civil  Procedure,  of  the  State  of  New  York,  contains  Tihe 
following  provision  : 

"  Sec.  449.  Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  that  an  executor  or  administrator,  a  trustee  of 
an  express  trust,  or  a  person  expressly  authorized  by  statute,  may  sue 
without  joining  with  him  the  person  for  whose  benefit  the  action  is 
prosecuted.  A  person  with  whom,  or  in  whose  name  a  contract  is  made 
for  the  benefit  of  another,  is  a  trustee  of  an  express  trust,  within  the 
meaning  of  this  section." 

Under  this  provision,  the  Court  of  Appeals  of  that  State  has  held 
that  an  agent  of  a  corporation  to  whom,  "as  executive  agent  of  the 
company,"  a  promise  is  made  to  pay  money  is  "  a  person  with  whom, 
or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another, ' '  and 
may  therefore  sue  in  his  own  name  on  the  promise.  ^  The  rule  thus 
established  is  applicable  to  actions  at  law  in  the  courts  of  the  United 
vStates  held  within  the  State  of  New  York.^ 

The  case  then  stands  thus :  If  the  agreement  to  sell  is  an  agreement 
made  by  Lundberg  personally,  and  not  in  his  capacity  of  agent  of  the 
Swedish  firm,  the  price  is  likewise  payable  to  him  personally,  and  the 
action  on  the  contract  must  be  brought  in  his  name,  even  at  common 
law.  If,  on  the  other  hand,  the  agreement  must  be  considered  as  made 
by  Lundberg,  not  in  his  individual  capacity,  but  only  as  agent  and  in 
lehalf  of  the  Swedish  firm,  and  for  their  benefit,  then  the  price  is  paya- 
ble to  him  as  their  agent,  and  for  their  benefit,  in  the  same  sense  in 
[which  an  express  promise  to  pay  money  to  him  as  the  agent  of  that 

rm  would  be  a  promise  to  pay  him  for  their  benefit,  and  therefore,  by 
the  law  of  New  York,  which  governs  this  case,  an  action  may  be  brought 
in  his  name.     In  either  view,  this  action  is  rightly  brought.^ 


1  Citing  Considerant  v.  Brisbane,  22  N.  Y.  389.  See  infra,  "Trustee  of  an  Express  Trust." 

2  Citing  Rev.  Stat.,  \  914  :  Sawin  v.  Kenny,  93  U.  S.  2S9  ;  Weed  Sewing  Machine  Co.  v. 
Wicks,  3  Dillon,  261  ;  United  States  v.  Tracy,  8  Benedict,  1.  See  infra.  Practice  Conformity 
Act. 

3  Part  of  the  opinion,  on  questions  of  evidence,  is  omitted. 

The  judgment  below  was,  however,  reversed,  and  the  case  remanded  to  the  Circuit  Court, 
with  directions  to  set  aside  the  verdict,  because  of  the  admission  of  incompetent  evidence 
tending  to  mislead  the  jury. 


CASSIDV    v.    WOODWARD. 


ft/  V 


c 

CASSIDY  V.  WOODWARD.  ^^    \^  >^      '\ 

SuPREMK  Court  of  Iowa,   May  13,  1889.    ^v        \ 

\^ 
[77  /owa,   354.] 

This  is  an  action  in  equity,  and  it  involves  the  title  and  ownership  01 
eiglity  acres  ot' land  in  Siou.x  county. 

Upon  a  trial  on  the  merits,  the  plaintiff's  petition  was  dismissed,  and 
a  decree  was  entered  quieting  the  title  in  the  defendant.     Plaintiff  appeals. 

Rickcl  &  Crocker  and  J.   IV.  Bull,  for  appellant. 

Argo  &  McDiiffie  and  Struble,  Ris/icl  '^  Hart,  for  appellee. 

RoTHROCK,  J. — I.  Both  parties  claim  title  to  the  land  under  one 
Gabriel  T.  Rock.  The  plaintiff's  alleged  title  consists  of  a  regular  chain 
of  conveyances  from  Rock  through  several  intermediate  grantors.  The 
defendant's  alleged  title  is  based  upon  a  sheriff's  sale  of  the  land  upon 
an  execution  on  a  judgment  against  said  Rock.   .   .   . 

.II.  It  is  claimed  in  the  answer,  and  strenuously  urged  by  counsel 
for  appellee,  that  the  plaintiff  is  not  the  real  party  in  interest  ;  that  the 
real  parties  are  the  counsel  in  the  case  ;  and  that  they  bought  the  land 
and  took  the  title  in  the  name  of  the  plaintiff,  who  is  a  servant  in  the 
family  of  one  of  the  counsel  ;  and  that  the  purchase  of  the  land  was  a 
fraud  and  a  conspiracy  on  the  part  of  plaintiff's  counsel ;  and  that  the 
claim  made  by  plaintiff  for  the  land  is  against  public  policy  and  good 
morals. 

It  is  true  that  the  plaintiff's  counsel  purchased  the  land  and  paid  for 
it  and  had  the  conveyance  made  to  plaintiff,  a  servant  in  one  of  their 
families.  There  is  no  evidence  that  they  discovered  the  alleged  defect 
in  the  plaintiff's  title.  On  the  contrary  it  appears  that  Rock  conveyed 
the  land  to  one  Marbourg,  and  he  convej-ed  it  to  one  Pitts,  and  Pitts 
conveyed  it  to  the  plaintiff.  It  is  true,  as  claimed  by  the  defendant, 
that  actions  must  be  prosecuted  in  the  name  of  the  real  party  in  interest, 
excepting  in  certain  cases.  Code,  sec.  2543.  The  exceptions  are  set 
forth  in  section  2544,  which  is  in  these  words:  "An  executor  or  ad- 
ministrator, a  guardian,  a  trustee  of  an  express  trust,  a  party  with  whom, 
or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another,  or  party 
expressly  authorized  by  statute,  may  sue  in  his  own  name,  without 
joining  with  him  the  party  for  whose  benefit  the  suit  is  prosecuted." 

It  has  uniformly  been  held  by  this  court  that,  under  this  provision 
of  the  Code,  the  party  holding  the  legal  title  to  a  cause  of  action, 
though  he  be  a  mere  agent  or  trustee,  with  no  beneficial  interest  therein, 
may  sue  thereon  in  his  own  name.^ 

1  Citing  Cottle  v.  Cole,  20  Iowa,  481  ;  Rice  v.  Savery,  22  Iowa,  470  ;  Pearson  v.  Cummings, 
28  Iowa,  344  ;  Knadler  v.  Sharp,  36  Iowa,  232  ;  Vimont  j'.  Railway  Co.,  64  Iowa,  514. 

Accord:  .\le.tander  v.  Overton  (1893), 36  Neb,  503.  And  see,  Gray  v.  Journal  of  Finance 
(1893),  2  Misc.  260.— Ed. 


202  IN   WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

The  plaintiff  stands  in  the  place  of  Marbourg,  who  was  grantee  of 
Rock,  and  of  Pitts,  her  grantor  ;  and  the  fact  that  she  paid  nothing  for 
the  conveyance,  and  that  her  counsel  paid  the  consideration  and  had 
the  conveyance  made  to  her,  even  without  her  knowledge  at  the  time, 

is  no  defence  to  the  action.  *  Reversed. 

I 


WELSH  V.  RHEINHARDT  &  CO. 

Supreme  Court  of  New  York,  Appellate  Term.  July,  1897. 

[21  Aftse.  22.] 

Appeal  from  an  affirmance  b}'  the  General  Term  of  the  City  Court  of 
a  judgment  in  favor  of  plaintiff. 

Joseph  C.  Rosetibatini,  for  appellant. 

Franklin  Pierce,  for  respondent. 

Daly,  P.  J. — The  plaintiff"  made  an  agreement  in  writing  with  the 
defendant,  a  corporation,  to  furnish  and  erect  a  gas  engine  complete  for 
$1,085,  the  price  to  include  a  suitable  brick  foundation  for  the  engine 
and  all  necessary  gas,  water,  and  exhaust  piping,  and  plaintiff"  guaran- 
teed the  engine  for  one  j-ear  against  all  imperfections  of  workmanship 
and  material  and  also  guaranteed  the  horsepower,  agreeing  to  furnish, 
if  needed,  an  additional  engine.  The  contract  also  included  the  follow- 
ing clause,  upon  which  defendant  bases  the  defence  that  the  plaintiff" 
is  not  the  real  part}'  in  interest,  that  being  the  sole  contention  upon 
this  appeal. 

"It  is  also  herein  agreed  and  understood  that  the  above  thirty-power  engine 
is  to  remain  the  property  of  the   Springfield  Gas  Engine   Co.,  of  Springfield, 
Ohio,  until  paid  for  in  full,  and  is  not  to  be  sold,  mortgaged,  or  removed  with- 
out their  entire  approval  and  consent.  " 

This  action  is  brought  to  recover  the  contract  price  above  specified, 
and  it  is  claimed  that  the  Springfield  Gas  Engine  Co.  alone  has  the 
right  to  maintain  the  action  as  owner  of  the  engine. 

The  real  part}'  in  interest  is  the  party  having  the  sole  right  to  enforce 
the  contract,  and  the  plaintiff"  is  that  part}-,  the  contract  being  not 
simply  for  the  sale  of  the  engine,  for  which  plaintiff  might  have  been 
regarded  as  acting  merely  as  agent,  but  for  labor  and  materials  for 
which  he  contracted  as  principal,  and  for  collateral  warranty  upon 
which  he  alone  is  liable.  If  plaintiff  had  made  the  contract  expressly 
as  agent  of  the  Springfield  company,  he  would  nevertheless  be  entitled 
to  sue  in  his  own  name  upon  it,  since  he  was  personally  bound  for  its 
fulfilment.  Nelson  v.  Nixon,  13  Abb.  Pr.  104.  So  far  as  any  title  was 
vested  in  the  Springfield  company  by  the  contract,  that  title  depended 
upon  the  contract  as  a  mere  incident  thereto  and  would  be  divested  by 

1  Part  of  the  opinion,  dealing  with  other  points,  is  omitted. 


ALEXANDER    V.    OVERTON    ET   AL.  203 

paj-ment  as  prescribed  therein.     If  the  contract  with  the  plaintiff  be 
satisfied  no  title  remains  in  the  company.     None  of  the  cases  cited  by 
aj^pellant  sustains  his  objection  to  plaintiff's  recovery. 
BiscHOFF  and  McAdam,  JJ.,  concur. 

Judgment  a/firmed,  with  costs. 


ALEXANDER  v.  OVERTON  ET  AL. 

Supreme  Court  of  Nebraska,  September  22,   1897. 

[  52  Neb.  283.] 

This  action  was  brought  in  the  District  Court  of  Otoe  count}-  under 
the  title  of  Art  Eliza  Alexander  against  John  Overton  and  others.  The 
facts  appear  in  the  opinion  of  the  court. 

C.    IV.  Seymour,  for  plaintiff  in  error. 

John  C.    Watson  and  Joh?i    W.  Dixon,  contra. 

Norval,  J. — This  is  the  second  appearance  of  this  cause  in  this 
court.  ^  The  action  was  brought  under  section  71,  chapter  66,  General 
Statutes,  1873,  against  the  principal  and  sureties  on  the  official  bond  of 
John  Overton,  as  treasurer  of  Otoe  count}-,  to  recover  for  the  wrongful 
sale  b}'  him  to  plaintiff  of  certain  real  estate  for  taxes. ^ 

The  sole  defence  relied  upon  is  that  plaintiff  is  not  the  real  part\'  in 
interest. 

On  the'  last  as  well  as  on  the  first  trial  in  the  court  below  this  issue 
was  determined  in  favor  of  the  defendants.  On  the  former  hearing  in 
this  court  a  reversal  of  the  judgment  was  entered  for  want  of  sufficient 
evidence  to  sustain  the  said  defence.  In  the  opinion  then  filed  it  was 
held  that  plaintiff  could  maintain  it,  since  it  was  proven  that  the  lands 
were  pitrchased  from  defendant  Overton  at  tax  sale  in  the  name  of 
plaintiff  with  moneys  purporting  to  belong  to  her.  On  the  last  trial  it 
was  likewise  established  by  undisputed  testimony  that  the  lands  in  con- 
troversy were  purchased  for  plaintiff  bj-  her  brother,  W.  D.  Merriam  ; 
that  he  paid  the  money  for  her  on  the  several  sales  to  the  defendant 
Overton,  and  that  the  latter  made  the  certificate  of  tax  deeds  to  plaintiff. 
These  facts  justified  the  bringing  of  the  suit  in  her  name  w-hen  the  same 
was  instituted,  no  assignment  of  the  causes  of  action  at  or  prior  to  that 
time  having  been  shown. 

iSee  Alexander  v.  Overton  (1893),  36  Neb.  503. 

2  In  other  words,  for  selling  lands  where  no  title  could  pass  by  the  sale.  Section  71, 
chap.  66,  Gen.  Stat.,  N.b  ,  1873,  provided  that  "When,  by  mistake,  or  wrongful  act  of  the 
treasurer,  or  other  officer,  land  has  been  sold  contrary  to  the  provisions  of  this  act,  the 
county  is  to  save  the  pure  aser  harmless  by  paying  him  the  amount  of  principal  and  inter- 
est to  which  he  would  have  been  entitled  had  the  land  been  rightfully  sold,  and  the  treas- 
urer, or  other  officer,  and  their  sureties,  shall  be  liable  for  the  amount  on  their  bonds  to  the 
county,  or  the  purchaser  may  recover  the  amount,  directly  from  the  treasurer,  or  other 
officer,  making  such  mistake   or  error." — Ed. 


204  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

John  A.  Rooney,  an  attorney  at  law,  in  the  ofi&ce  of  John  C.  Watson, 
counsel  for  defendant,  testified  on  the  second  trial  that  on  his  return 
from  a  business  trip  east,  at  the  request  of  Mr.  Watson  he  called  upon 
plaintiff  at  her  home  in  Sigourney,  Iowa,  and  had  a  conversation  with 
her,  in  which  she  stated  she  was  a  sister  of  W.  D.  Merriam  ;  that  she 
was  not  interested  in  any  suits  pending  in  the  district  court  of  Otoe 
county  under  the  title  of  Art  Eliza  Alexander  against  John  Overton  ; 
and  that  she  possessed  no  money  of  her  own.  This  testimony  was 
wholly  insufficient  to  defeat  the  action,  and  is  easily  reconciled  with  the 
evidence  adduced  on  behalf  of  the  plaintiif.  W.  D.  Merriam  testified, 
and  his  testimony  is  uncontradicted,  that  he  bought  the  lots  at  tax  sale 
from  Mr.  Overton  for  plaintiflf,  Mrs.  Alexander,  with  her  money  and  in 
her  name  ;  that  he  had  no  interest  in  the  purchases  ;  and  that  in  Janu- 
ary, 1894,  since  the  commencement  of  this  action  and  prior  to  said  con- 
versation which  Mr.  Rooney  had  with  plaintiff,  Mr.  Merriam  purchased 
all  his  sister's  interest  in  this  suit.  The  assignment  was  introduced  in 
evidence,  and  is  found  in  the  bill  of  exceptions.  While  Mrs.  Alexander 
did  not  in  fact  have  any  interest  in  the  litigation  at  the  time  she  con- 
versed with  Mr.  Rooney,  she  was  the  real  party  in  interest  at  the  time 
the  suit  was  brought.  The  assignment  by  plaintiff  to  ]\Ir.  ISIerriam  did 
not  abate  the  action,  but  the  latter,  under  section  45  of  the  Code,  had 
the  undoubted  right  to  prosecute  the  suit  to  final  termination  in  the 
name  of  the  original  plaintiff.^ 

Under  the  evidence  the  court  should  have  directed  a  verdict  for  the 
plaintiff.  The  judgment  is  reversed  and  the  case  remanded  for  a  new 
trial.  Reversed  and  remayided. 

Harrison,  J.,  not  sitting. 


EGGELING  :-.  ALLEN. 

Supreme  Court  of  New  York,  Appellate  Term, 
December  13,  1898. 

[25  Misc.  496.-] 

GilderslEEVE,  J. — The  plaintiff  recovered  judgment  against  the 
defendant  upon  a  trial  before  the  court  and  jurj-.  The  defendant  is  an 
attorney  at  law,  and  the  action  was  for  a  conversion  of  money  collected 
by   defendant  for  plaintiff  in   another  action.     This  action  was  com- 

1  Citing  Ma'geman  v.  Bell,  13  Neb.,  247  ;  Temple  v.  Smith,  13  Neb.,  513  ;  Dodge  v.  Omaha 
&  S.  W.  R.  Co.,  20  Neb.,  276  ;  Howell  v.  Alma  Milling  Co.,  36  Neb.,  So. 

In  Section  45  of  the  Nebraska  Code  it  was  provide:!  that  "  in  case  of  the  death  or  other 
disability  of  a  party,  the  Court  may  allow  the  action  to  continue  by  or  against  his  represent- 
ative or  successor  in  interest.  In  case  of  any  other  transfer  of  interest,  the  action  may  be 
continued  in  the  name  of  the  original  party,  or  the  Court  may  allow  the  person  to  whom  the 
transfer  is  to  be  substituted  in  the  action." — Ed. 

2  S.  C,  54  N.  y.  Siipp.  1029. 


EGGELING   V.    ALLEN.  205 

menced  on  April  14,  1898,  and  tried  on  Ma}-  iStli.  Subsequent  to  the 
«ransaction  in  which  defendant  collected  the  mone}-  in  question,  and 
before  the  commencement  of  this  action,  plaintiff  became  insolvent, 
and  this  money,  so  collected  by  defendant  for  plaintiff,  was  discovered 
in  supplementary  proceedings.  The  court  thereupon  appointed  a 
receiver  of  the  property  of  the  plaintifT  herein,  and  restrained  the  said 
plaintiff  and  all  persons,  except  the  receiver,  from  interfering  with 
said  mone}-.  The  order  appointing  the  receiver  was  filed  and  recorded 
on  Februarys  15,  1898,  and  the  receiver  duly  qualified. 

At  the  opening  of  the  trial  herein,  the  defendant's  attorney  stated  to 
the  court  that  the  defendant  had  been  served  with  an  order  appointing 
a  receiver  for  the  moneys  claimed  in  the  action,  and  that  the  order  en- 
joined both  plaintiff  and  defendant  from  any  interference  with  or  trans- 
fer of  the  money;  and  said  attorney  added,  "  I  submit  this  certified 
copy  of  the  order  to  the  court.  "  He  then  moved  that,  for  that  reason, 
the  case  be  dismissed.  The  court  denied  the  motion,  and  directed  the 
trial  to  proceed,  saying,  "  If  judgment  is  rendered  against  j-ou  (defend- 
ant), you  can  turn  the  monej^  over  to  the  receiver."  We  think  this 
ruling  was  error.  The  order  appointing  a  receiver,  though  annexed  to 
the  return,  does  not  seem  to  have  been  marked  in  evidence.  It  was, 
however,  treated  by  the  court  as  properly  in  evidence,  its  effect  was 
commented  upon  by  the  learned  justice,  and  w^e  must  regard  it  as  a 
part  of  the  record  that  we  are  reviewing. 

It,  therefore,  clearly  appears  that  the  plaintiff  was  not  the  real  party 
in  interest,  and  was  without  power  to  prosecute  the  action. 

The  judgment  should  be  reversed  and  a  new"  trial  ordered,  with  costs 
to  the  appellant  to  abide  the  event. 

L.  L.  G.  Benedict,  for  appellant. 

H.  M.   Greetie,  for  respondent. 

Judgjnent  reversed  and  new  trial  ordered,  with  costs  to  appellatit  to  abide 
event. 

Beekman,  p.  J.,   and  Giegerich,  J.,   concur. 


IN   WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 


f^  J.  JiPV^j   VB.      The  real  -party  in  interest  zuhen  a  contract  is  7nadc  zuith  one  for  the 
kj)!  ^y  benefit  of  another. 


,0^ 

/ 


'   I.      WHEN   THE    PARTY   WITH   WHOM   THE    CONTRACT    IS   MADE    IS    THE 
AGENT   OF   AN   UNDISCLOSED   PRINCIPAL. 

ERICKSON  V.  COMPTON. 

Supreme  Court  of  New  York,  Cayuga  General  Term,  June,  1852. 

[6  How  Pr.  471.] 

This  was  an  action  upon  a  contract,  a  copy  of  which  is  hereinafter 
given.  The  plaintiff  alleged  in  his  complaint  that  he,  by  James  H. 
Hotchkin,  Jr.,  his  agent,  entered  into  a  contract  with  the  defendant, 
setting  forth  the  substance  of  it  in  like  manner  as  if  it  had  been  made 
with  himself  in  person,  and  assigning  several  breaches.  The  defendant 
in  his  answer  denied  that  he  made  a  contract  with  the  plaintiff  in  per- 
son or  by  his  agent,  but  stated  that  he  made  a  contract  with  James  H. 
Hotchkin,  Jr.,  of  which  contract  duplicates  were  made;  that  one  of 
these,  signed  by  Hotchkin,  was  delivered  to  the  defendant,  and  the 
other,  signed  by  the  defendant,  was  delivered  to  Hotchkin;  and  that 
Hotchkin  at  the  time  delivered  to  the  defendant  his  check  on  the  Steuben 
County  Bank  for  the  $500  mentioned  in  the  contract.  A  cop3^  of  the 
contract,  retained  by  the  defendant,  was  set  out  in  the  answer,  as  follows: 

Rec'd  of  James  H.  Hotchkin,  Jr.,  his  check  for  $500,  on  Steuben  County 
Bank,  payable  on  Monday  next,  to  be  applied  on  the  last  invoice  of  the  follow- 
ing contract,  viz. :  I  agree  to  sell  him  all  the  pulled  wool  I  now  have  on  hand 
here  and  in  New  York,  that  is  unsold,  and  what  is  on  the  skins  I  have  now 
bought  up  to  this  time;  also  to  include  all  the  green  skins  which  may  come  in 
or  be  taken  off  by  me  up  to  the  first  day  of  June  next,  excepting  qualities  below 
No.  2,  and  to  get  up  the  wool  in  dry  order,  and  in  order  as  to  condition  and 
quality,  equal  to  what  I  now  have  on  hand  here,  and  making  the  wool  now 
in  the  hands  of  B.  Marshman,  39  Spruce  street,  New  York,  the  sample  of  its 
condition,  all  to  be  taken  off  by  the  first  day  of  June  next,  and  to  keep  pulling 
on  this  contract  until  all  is  pulled;  and  the  amount,  not  exceeding  60,000  lbs., 
and  deliver  the  same  to  J.  Fowler's  landing  on  Seneca  Lake  at  26_^  cents  per 
lb. ;  said  Hotchkin  to  furnish  the  sacks  and  pay  for  the  wool  on  each  invoice,  to 
average  every  fifteen  days,  at  my  counting-room,  Tyrone;  the  sacks  to  be  their 
actual  tare;  sacks  to  be  good  and  delivered  in  time,  else  Compton  to  furnish 
them  at  5c.  each.  J.   H.  Hotchkin,  Jr. 

Tyrone,  30th  January,  1849. 

The  defendant  alleged  that  he  made  the  contract  with  Hotchkin  as 
principal  and  not  as  agent ;  that  it  was  made  for  the  benefit  of  Hotch- 
kin ;  and  that  plaintiff  had  no  interest  in  the  same.  He  also  answered 
as  to  the  breaches  assigned. 


ERICKSON    V.    COMPTON.  207 

The  plaintiff  replied  that  the  contract  set  forth  in  the  complaint,  and 
also  set  forth  and  referred  to  in  the  answer,  was  made  with  the  defend- 
ant b}'  Hotchkin  as  the  agent  of  and  for  the  plaintiff,  of  which  the  defend- 
ant had  notice  ;  that  the  money  advanced  by  Hotchkin  was  the  money 
of  the  plaintiff;  and  that  the  plaintiff  was  the  sole  and  only  party  inter- 
ested in  the  contract  as  purchaser.  Issue  was  taken  upon  other  mat- 
ters in  the  answer. 

The  cause  was  brought  to  trial  at  a  Circuit  Court  in  Steuben  county 
in  November,  1850,  when  the  duplicate  contract,  signed  by  the  defend- 
ant, was  produced  and  proved  by  Hotchkin,  and  read  in  evidence. 

The   plaintiff's    counsel    then    proposed   to  the    witness,    "In  what      ^jU^    ^ 
capacity  were  you  acting  at  the  time  of  the  execution  of  the  contract  ?"      •  >  -^  , 
This  question  was  objected  to  by  the  defendant's  counsel  and  the  objec-  /  dj 
tion  was  sustained  by  the  court  and  the  question  excluded.     To  this      '' 
decision  the  counsel  for  the  plaintiff  excepted. 

The  plaintiff's  counsel  then  offered  to  prove  that  at  the  time  the  contract 
was  made  the  witness  was  acting  as.  the  agent  of  the  plaintiff;  that  the 
witness  had  no  interest  in  the  contract,  or  the  subject  matter  of  it;  but  , 
that  it  belonged  solely  and  exclusively  to  the  plaintiff  who  had  furnished 
the  $500  advanced  at  the  time  of  the  execution  of  the  contract;  and 
that  the  defendant  before  and  at  the  time  the  contract  was  executed 
knew  these  facts.  The  defendant's  counsel  objected  to  this  evidence 
and  the  court  decided  that  the  testimony  was  inadmissible  and  excluded 
it.     To  this  decision  the  counsel  for  the  plaintiff  excepted. 

The  plaintiff  having  no  further  evidence  to  offer,  the  court  directed  a 
non-suit. 

Judgment  having  been  entered  against  the  plaintiff,  he  appealed  to 
the  general  term. 

O.  H.  Palmer,  for  plaintiff. 

D.  G.  Sunderlin,  tor  defendant. 

By  the  Court,  T.  R.  Strong,  Justice. — It  appears  to  be  a  well-es-        ,fj/^ 
tablished  rule  in  England  that  a  principal  whose  agent  has  entered  into     ^        yi 
a  simple  contract  in  writing  in  the  business  of  the  agency  in  the  agent's      T,^ 
name,  whether  the  agency  was  or  was  not  disclosed  at  the  time,  may       ^ 
prove  by  parol  the  fact  of  such  agency  and  maintain  an   action  on 
the  contract  in  his  own  name.     Such   proof  it  is  there  held  does  not 
contradict  the  contract;   "it  merely  lets  in  a  third  party  who  was  really 
interested."     The  cases  in  support  of  this  doctrine  are  collected  in 
Stor^'  on  Agency,  §§  160,  163,  269,  270,  and  notes ;   see  also  H7imble  v, 
Hmiter,  12  Adolphus  &  Ellis,  310;  Schmalz  v.  Avery,  3  Eng.  Law  and! 
Ed.  Rep.  391,  395.     Indeed  the  English  rule  goes  further  and  holds  the' 
principal  bound  by  and  liable  upon  such  a  contract  in  like  manner  as  J 
if  he  had  signed  it  (same  cases).      I  am  inclined  to  think.  however^^Jthat 
the  common  law  rule  on  the  subject  in  this  state  is  the  other  way;  it  I 

G^ 


1^ 


208  IN  WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

rertainlv  it;  ^c;  rpgppr^fg  fhe  liability  of  the  principal  on  the  contract.^ 
Hence,  if  the  question  in  the  present  case  as  to  the  admissibility  of  the 
evidence  offered  at  the  circuit  was  to  be  decided  upon  common  law 
principles,  I  should  feel  bound  by  the  authorities  to  sustain  the  de- 
cision excluding  it. 

But  I  am  satisfied  that,  under  the  provisions  of  the  Code,  the  evi- 
dence offered  in  this  case  was  admissible;  and  that  assuming   to   be 
true,  what  was  proposed  to  be  proved,  the  action  was  well  brought  in 
the   name   of  the  plaintiff.     Section    iii    of  the   Code   provides   that 
.  I    "every  action  must  be  prosecuted  in  the  name  of  the  real  part}^  in 

9^  0  />K  interest,  except  as  otherwise  provided  in  section  113,"  &c.  By  section 
.  *«pr  I  113,  "an  executor  or  administrator,  a  trustee  of  an  express  trust,  or 
J  a  person  expressly  authorized  by  statute,   may  sue,  without  joining 

with  him  the  person  for  w^hose  benefit  the  action  is  prosecuted.  A 
trustee  of  an  express  trust,  within  the  meaning  of  this  section,  shall 
be  construed  to  include  a  person  with  whom,  or  in  whose  name,  a  con- 
tract is  made  for  the  benefit  of  another. "  It  was  not  necessary  for  the 
plaintiff,  as  it  would  have  been  before  the  "Code,  to  show  that  the  con- 
tract was  made  witl]  llif"  ^"  pntitip  lii^  \n  sue  upon  it.  but  it  would 
Tiave  been  suflScient  to  prove  that  he  was  the  sole  owner  of  the  contract 
"  b}^  its  having  been  made  lor  his  benefit.       — —  - 

"  I  he  difl&culty  in  such  a  case  at  common  law  was  well  stated  by  JEW- 
ETT,  Justice,  in  Newcomb  v.  Clark,'''  before  cited.  That  was  an  action 
by  the  principal  on  a  written  guaranty  made  to  his  agent.  He  says : 
' '  The  rule  in  regard  to  paries  to  actions  seems  to  be,  that  ever>'  action 
on  an  express  contract  must  be  brought  in  the  name  of  the  person  to 
whom  the  engagement  violated  was  originally  made,  unless  it  is  trans- 
ferrable,  as  a  negotiable  note,  &c.  In  the  present  case  the  promise  or 
agreement  is  expressly  made  wnth  Peters  ;  Clark 's  name  does  not  appear 
in  the  writing.  It  was  not  competent  to  contradict  or  amend  the  agree- 
ment, by  parol  proof,  by  substituting  Clark's  name  as  the  promisee  in 
place  of  Peters. "  According  to  this  doctrine  an  action  would  not  lie 
in  the  name  of  the  principal,  unless  he  was  an  original  party  to  the 
agreement.  The  English  cases  hold  that  he  might  be  proved  to  have 
been  such  by  parol,  but  the  cases  in  this  State  appear  to  decide  that 
the  contract  could  not  be  thus  amended  by  adding  a  part}'. 

The  Code,  by  the  sections  named,  has  abolished  the  common-law  rule 
in  regard  to  parties,  in  such  a  case,  so  far  as  it  was  imperative,  and 
conferred  upon  the  exclusive  owner  of  the  demand  the  right  to  sue  in 
his  own  name,  or  in  the  name  of  the  agent,  at  his  election.  That  rule 
being  abolished,  the  plaintiff  was  not  required,  in  order  to  maintain 
the  present  action,  to  amend  the  agreement  in  question  by  substitut- 

1  Citing  Newcomb  v.  Clark,  i  Denio,  226,  229:  Harp  v.  Osgood,  2  Hill,  216,  219,  Minard  v. 
Mead,  7  Wend.  68;  Pentz  v.  Stanton,  10  Wend.  271;  Spencer  v.  Field,  id.  87;  Allen  v.  Coit,  6 
Hill.  318;  Evans  v.  Wells,  22  Wend.  324;  Townsend  v.  Hubbard,  4  Hill,  351;  Moss  v.  l,iving- 
ston,  4  Comst.  208. 

2  I  Denio,  226,  229  (1845). 


HALL   V.    PLAINE.  209 

ing  or  adding  the  plaintiff's  name.  The  agreement  need  not  have  been 
made  by,  or  with  him,  as  an  original  party.  It  might  be  treated  as 
having  been  made  with  Hotchkin.  If  the  plaintiff  had  the  entire  title 
to  the  claim,  it  was  all  that  was  important.  Nor  would  the  parol  proof 
offered  have  contradicted  the  contract,  regarding  it  as  made  with  Hotch- 
kin. It  would,  on  the  contrary,  have  been  in  perfect  harmony  with  it. 
There  is  no  inconsistency  between  a  contract  in  the  name  of  one  person, 
and  the  fact  that  another  person  is  entitled  to  the  benefit  of  it.  It  will 
thus  be  seen,  I  think,  that  the  obstacle  which  existed  at  common  law 
to  the  plaintiff's  bringing  the  action  and  making  the  proof  offered  in 
this  case,  has  been  entirely  removed. 

In  view  of  the  case  now  taken,  it  would  have  been  more  proper  for 
the  plaintiff  to  have  set  forth  the  contract  in  his  complaint,  as  made 
with  Hotchkin,  and  alleged  that  it  was  made  by  him  as  agent  of  the 
plaintiff,  and  for  the  plaintiff's  benefit  ;  and  I  should  entertain  doubts 
as  to  the  right  of  plaintiff  to  recover  udot^  tVip  romplnint  as  framed,  but 
for  the  fact  that  the  defendant  has  him<f1f  ^pt  nnt  the  contract  fullv  in 
his  answer,  and  the  plaintiff  ha?  ndrp^^^^  '"^  ^"  ^'""  ^ppl^'-"^  thr  ■  one 
re^erfM  to  m  the  complaint.  This,  I  think,  obviates  the  objection  now 
suggestea. 

It  follows  that  the  evidence  which  was  rejected  should  have  been 
received.     A  new  trial  is  therefore  granted,  costs  to  abide  the  event. ^ 


HALL  V.  PLAINE.'/^* 

Supreme  Court  of  Ohio,  December  Term,   1863. 

[14  O.  S.  417.] 

In  October,  1857,  Samuel  Plaine  brought  a  civil  action  against  Henry    q^  ^ 
Ebbert  and  others,  in  the  common  pleas  of  Seneca  county,  on  certain 
promissory  notes.     In  this  action  Luther  A.  Hall,  in  March,  185S,  was 
made  a  defendant,  and  filed  his  answer  in  the  nature  of  a  bar  and  coim- 

terclaim.  ^•. 

Such  proceedings  were  had  in  the  action,  that  in  June,  i860,  plaintiff  Qj^^Jjl^X^ 
had  leave  to  dismiss  his  action  and  withdraw  his  petition,  without  prej- 
udice to  a  future  action ;    but,  on  the  motion  of  Hall,  the  court  at  the 
time,  ordered  his  counterclaim  to  be  docketed,  and  set  down  for  trial 
pursuant  to  the  code.     Hall  had  leave  to  amend,  and  made  Ebbert  also  ^ 
a  party,  and  on  November  5,  1S60,  filed  his  amended  answer  and  cross    ,. 
petition,  which  alleges  in  substance,  as  a  first  cause  of  action,  that  Eb- 
bert, on  February  24,  1S54,  purchased  of  Plaine,  in  his  (Ebbert's)  name, 

^Accord:    Ruiz  v.  Norton  (1S54),  4  Cal.,  355,  358  ;   Ames  v.  First  Division  St.  Paul  R.  R.     ^    ^ 
(1867)    12  Minn.,  412;  Darling- 7^.  Noyes(iS7i),  32  Iowa,  96;   Briggs  z/.  Munchon  (1874),  56  Mo., 
466,  472  ;   Bank  of  Odessa  v.  Jennings  (1S85),  18  Mo.  App.,  651,  65S ;  Parker  v.  Cochrane  (1888), 
II  Colo!,  363,  367  ;    Barham  v.  BeU  (1S93),  112  N.  C,  131. 


210  IN    WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT 

but  for  Hall,  in-lot  32,  in  Tiffin,  and  received  from  Plaine  a  deed  in  fee 
therefor,  containing  covenants  of  seizin,  against  incumbrances,  and  of 
general  warranty.  The  consideration  was  $4,000 — $2,000  of  which  he 
paid  down  with  the  money  of  Hall,  and  for  the  residue  gave  his  three 
notes,  payable  in  one,  two,  and  three  3'ears,  with  interest,  each  for 
$666.66.  On  March  23,  1854,  Hall  assumed  the  payment  of  said  notes, 
and  executed  to  Ebbert  a  bond  of  indemnity  to  save  him  harmless,  and 
Ebbert  having  been  Hall's  agent  in  making  said  purchase,  and  being 
his  trustee  in  receiving  and  holding  the  title  for  his  use,  in  considera- 
tion of  the  premises,  conveyed  the  lot  in  fee  to  Hall,  who  has  ever  since 
held,  and  yet  holds,  the  legal  title,  and  all  the  interest  acquired  by  Eb- 
bert from  Plaine.  Before  and  at  the  time  of  said  purchase  from  Plaine, 
and  the  execution  of  said  deeds,  the  lot  was  incumbered  by  two  out- 
standing leases,  executed  by  Plaine. 

Hall  prays  judgment  against  Plaine  for  damages,  and  for  other  relief. 

Plaine  demurs,  assigning  for  cause  that  Hall's  pleadings  do  not  state 
facts  sufficient  to  constitute  a  cause  of  action  against  him. 

The  court  of  common  pleas  sustained  the  demurrer,  and  gave  judg- 
ment against  Hall.  To  reverse  this  judgment  Hall  filed  a  petition  in 
error,  in  the  district  court,  assigning  for  error; — (i.)  That  the  court 
erred  in  sustaining  the  demurrer  ;  (2.)  That  the  court  erred  in  giving 
judgment  for  Plaine  instead  of  Hall. 

The  district  court  reserved  the  case  to  this  court  for  decision. 

A.  G.  Thurman,  for  plaintiff"  in  error. 

James  Pillars ,  for  defendant  in  error.  ^ 

Wilder,  J. — The  simple  question  presented  for  the  consideration  and 
decision  of  the  court  in  this  case  is,  whether  the  cross  petition,  or  coun- 
terclaim of  Hall  states  facts  sufficient  to  constitute  a  cause  of  action  in 
his  favor  against  Plaine. 

It  is  conceded  by  the  counsel  of  both  parties  that  whether  reference 
be  bad  to  the  covenant  of  seizin,  against  incumbrances,  or  general  war- 
ranty, in  the  deed  of  Plaine  to  Ebbert,  there  was  a  breach  of  such  cove- 
nant at  the  time  of  the  execution  of  the  deed.  It  is,  thereupon,  claimed 
by  the  counsel  of  Plaine,  that  said  covenants  did  not  thereafter  run  with 
the  land,  but  became  a  chose  in  action — a  claim  for  damages  which 
Ebbert,  and  Ebbert  alone,  could  enforce  against  Plaine ;  that  the  breach, 
was  not  only  a  technical,  but  a  substantial  one;  that  the  subsequent 
conveyance  of  the  in-lot  by  Ebbert  and  Hall  did  not  carr^-  with  it  a 
right  to  sue  Plaine  on  his  broken  covenant  with  Ebbert,  for  the  reason 
that  the  right  to  sue  Plaine,  being  in  Ebbert,  could  not  pass  from  him,  or 
vest  in  another,  without  an  assignment  or  transfer  for  that  purpose, 
and  that  a  mere  deed  of  conveyance,  to  transfer  the  title,  does  not  operate 
as  an  assignment  of  a  chose  in  action;  that  there  is  nothing  in  the 
pleadings  showing  that  such  an  assignment  was  made,  or  intended  to 
be  made,  or  that  Hall  predicates  his  right  to  sue  Plaine,  as  the  assignee 

1  The  aiguin  nts  are  omiUed. 


HALL   V.    PLAIXE.  211 

of  this  chose  in  action;  tliat  the  pleadings  show  that  Hall  predicates 
his  right  of  action  against  Plaine  upon  the  ground  that  the  covenants 
in  the  deed  from  Plaine  to  Kbbert  are  real  covenants,  running  with  the 
land,  and  passed  to  Hall  by  the  deed  of  Ebbert  to  him,  and  that  the 
covenants  were  broken  in  his  hands,  and  therefore  to  him  belongs  the 
right  to  sue  for  such  breach. 

That  the  breach  was  a  substantial  one,  and  that  a  covenant  substan- 
tially broken  does  not  pass  to  a  subsequent  grantee  by  the  mere  con- 
veyance of  the  title,  are  propositions  fully  sustained  by  the  authorities 
cited  by  counsel.  Perhaps  at  common  law  it  would  be  difficult  for  Plall, 
on  the  case  made  in  the  pleadings,  to  maintain,  his  action  in  his  own 
name  against  Plaine,  but  it  is  unnecessary  for  us  to  decide  that  ques- 
tion. The  case  made  in  the  pleadings  does  not  stand  upon  the  ground 
assumed  by  the  counsel.  It  is  averred  that  Ebbert  purchased /br  Hall. 
The  consideration  was  $4,000  ($2,000  of  which  he  paid  down  with  Hall's 
tnoncy) — and  gave  his  notes  for  the  remaining  $2,000.  On  the  3rd 
March,  1854,  Hall  assumed  the  payment  ot  the  notes,  and  executed  to 
Ebbert  a  bond  of  indemnit}'  to  save  him  harmless,  and  Ebbert,  having 
been  HalVs  agent  in  making  said  purchase,  and  being  his  trustee  in 
receiving  and  holding  the  title  for  his  use,  in  consideration  of  the  prem- 
ises, conve3'ed  the  lot  in  fee  to  Hall,  who  has  ever  since  held,  and  yet 
holds,  the  legal  title,  and  all  the  interest  acquired  by  Ebbert  from 
Plaine. 

The  rule  of  the  common  law,  that  pleadings  are  to  be  construed  most 
strongly  against  the  pleader,  is  abrogated,  the  rule  under  the  code 
being  that  their  "  obligations  shall  be  liberallj'  construed,  with  a  view 
to  substantial  justice  between  the  parties.  " 

The  objection  here  is,  that  there  is  no  averment  of  the  assignment  of  |  *,UL^ 
the  broken  covenant  by  Ebbert  to  Hall.  But  it  is  onlj-  a  fair  construc- 
tion of  the  above  allegations  that  Ebbert  was  the  agent  of  Hall  in 
making  the  purchase  ;  that  he  received  the  title  in  trust  for  Hall,  and 
that  by  the  arrangements  of  the  3d  of  March,  1854,  he  transferred  to 
Hall  not  merely  the  legal  title,  but  all  the  interest  he  acquired  from 
Plaine.  The  beneficial  interest  and  equitable  title  was  in  Hall  from  the 
beginning.  Before  the  code  Hall  could  have  sued  on  the  covenant  in 
the  name  of  Ebbert,  for  his  (Hall's)  use.  Hall  would  have  been  entitled 
to  the  damages  recovered,  because  he  was  the  part3^  and  not  Ebbert,  b}' 
whom  the  damages  were  sustained.  Since  the  code  that  form  of  proce- 
dure is  not  required.  Section  25  of  the  code  provides  that  "ever3' 
action  must  be  prosecuted  in  the  name  of  the  real  partj'  in  interest, 
except  as  otherwise  provided  in  section  27."  This  language  is  manda- 
tor\'.  In  section  27  it  is  permissive:  "An  executor,  administrator, 
giiardian,  trustee  of  an  express  trust,  a  person  with  whom,  or  in 
whose  name,  a  contract  is  made  for  the  benefit  of  another,  or  a  person 
expressly  authorized  by  statiite,  may  bring  an  action  without  joining 
with  him  the  person  for  whose  benefit  it  is  prosecuted."     Although 


/4i 


212  IN    WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 

under  this  section,  an  action  might  have  been  brought  by  Ebbert,  in 
his  own  name,  "  as  the  person  in  whose  name  the  contract  was  made, " 
yet  this  was  not  required.  Ebbert  is  a  party  defendant,  and  Hall  is 
the  real  party  in  interest.  The  pleadings,  therefore,  show  that  the 
claim  is  not  prosecuted  in  the  name  of  Hall. 

The  judgment  of  the  court  of  common  pleas  is  reversed.  The  demur- 
rer is  overruled,  and  the  cause  remanded  to  the  court  of  common  pleas 
for  further  proceedings. 

Peck,  C.  J.,  and  Brinkerhoff  and  Scott,  JJ.,  concurred. 

Ranney,  J.,  having  been  of  counsel  for  one  of  the  parties,  did  not  sit 
in  the  case. 


SILUMAN   V.  TUTTLE. 
SuRPEME  Court  of  New  York,  General  Term,  September  i8,  1865. 

l^S  Barb.  171.] 

This  is  an  action  brought  by  forwarding  and  commission  merchants, 
for  the  non-performance  of  an  agreement  made  by  the  agent  of  the 
defendants,  in  their  behalf,  concerning  the  freight  and  expenses  of  a 
certain  canal  boat.  In  June,  1864,  the  plaintiffs  sold  to  the  defendants, 
through  their  agent,  the  canal  boat,  A.  H.  Burch.  A  bill  of  sale  was 
executed  by  the  plaintiffs  and  delivered  to  the  agent,  at  the  time  of  the 
sale.  The  boat  was  then  on  her  way  to  Buffalo,  with  a  load  of  merchan- 
dize. 

It  was  agreed  by  and  between  the  plaintiffs  and  the  said  agent,  that 
Tuttle  and  Wagner  should  collect  and  receive  all  the  freights,  as  their 
own,  and  pay  the  plaintiffs  the  expenses  of  the  trip  incurred  by  them. 
The  plaintiffs  never  received  any  of  the  profits,  and  the  defendants  have 
never  paid  the  expenses  of  the  same. 

The  cause  was  tried  before  Geo.  Gould,  referee,  and  upon  the  trial  the 
defendants'  counsel  insisted  that  there  could  be  no  recovery  in  the 
action,  in  favor  of  the  plaintiffs,  for  the  reason  that  the  contract  for  the 
sale  of  the  boat  was  made  with  Robert  F.  Silliman,  one  of  the  plaintiffs, 
alone,  and  not  with  the  plaintiflFs  jointly.  Also  upon  the  ground  that 
the  contract  for  the  sale  of  the  boat  was  in  writing,  and  that  parol 
evidence,  offered  in  relation  to  the  expenses  of  the  boat  upon  the  trip 
she  was  prosecuting  at  the  time  of  the  sale,  and  the  evidence  that  the 
plaintiffs  were  to  have  and  receive  the  freights  earned  upon  that  trip, 
could  not  properly  be  received,  for  the  reason  that  such  evidence  varied 
and  contradicted  the  terms  of  the  written  contract.  The  referee  ruled 
and  decided  that  all  the  plaintiffs  were  properl}^  joined  in  the  action. 

C.  M.   White,  for  the  appellant. 

W.  A.  Beach,  Jiai.,  for  the  respondent. 


silm:iax  v.  tuttle.  213 

By  the  Co7trt,  Miller,  J.— It  is  objected  that  the  contract  now  in 
question  having  been  made  by  Robert  F.  Silliman  alone  with  the  de- 
fendants, a  joint  action  can  not  be  maintained  by  the  plaintiffs. 

The  Code,  section  in,  provides  that  all  actions  shall  be  brought  in 
the  name  of  the  real  party  in  interest.  For  business  convenience  the 
title  to  the  property  sold  to  the  defendants  was  in  the  name  of  one  of 
the  plaintiffs.  The  sale,  however,  was  made  for  the  benefit  of  all  the  par- 
ties, and  they  were  jointly  interested  in  the  contract.  Although  one  of 
the  plaintiffs  conducted  the  negotiations  and  executed  the  bill  of  sale  in 
his  individual  name,  yet  all  being  interested,  I  think  that  the  contract 
enured  for  their  joint  benefit. 

It  does  not  alter  the  case  that  the  defendants  were  ignorant  of  the 
fact  that  the  plaintiffs  were  jointly  interested,  so  far  as  the  com- 
mencement of  this  action  is  concerned.  As  principals  they  had  a 
perfect  right  to  avail  themselves  of  the  acts  of  their  agent,  and  whether 
he  acted  with  or  without  authority  in  the  negotiation  and  in  using  his 
own  name  makes  not  the  least  difference.  This  can  not  change  the 
relation  of  the  other  parties  in  interest,  and  as  long  as  they  were  own- 
ers they  can  not  be  deprived  of  the  legal  right  to  maintain  an  action 
upon  the  contract.  If  they  had  an  interest,  then  they  were  proper 
plaintiffs  in  the  action.     They  can  sue  and  were  liable  to  be  prosecuted. 

The  case  of  Niles  v.  Culver,  8  Barb.  205,  is  relied  upon  as  an  authority 
to  sustain  the  doctrine  contended  for  by  the  defendants'  counsel.  In 
that  case  the  action  was  brought  to  recover  damages  for  failure  to  per- 
form a  contract.  The  decision  turned  mainly  upon  the  point  whether 
oral  stipulations  or  negotiations  immediately  preceding  or  accompany- 
ing the  execution  of  a  written  agreement  could  be  introduced  in  evi- 
dence ;  and  the  court,  after  holding  that  they  were  merged  in  the 
instrument,  which  disposed  of  the  case,  also  decided  that  the  instrument 
showing  that  the  contract  was  made  with  one  of  the  plaintiffs,  the 
action  could  not  be  maintained.  It  may  be  remarked  that  the  action 
was  directly  on  the  contract,  which  was  in  writing,  and  of  course  con- 
trolling ;  while  here,  so  far  as  the  plaintiffs  claim  to  recover,  their  right 
is  based  upon  a  parol  agreement  outside  of  the  sale  of  the  property,  and 
it  may  be  said  independent  of,  and  separate  and  distinct  from  it,  and 
relating  entirely  to  the  earnings  and  expenses  of  the  boat  while  in  the 
progress  of  a  trip,  and  not  to  a  transfer  and  sale  of  the  boat  itself.  It 
may  also  be  observed  that  the  doctrine  laid  down  by  the  learned  judge 
who  wrote  the  opinion,  was  a  mere  diction,  without  any  discussion  of 
the  principle  involved,  and  without  any  reference  to  the  provision  of 
the  Code  which  I  have  cited;  nor  was  it  necessary  to  decide  that 
point  in  order  to  dispose  of  the  case.  Nor  does  it  appear  that  his 
attention  was  called  to  the  change  made  by  the  Code  in  this  respect. 
The  position  taken,  that  the  bill  of  sale  was  in  the  nature  of  a  deed, 
and  that  no  one  but  a  party  to  the  instrument  can  maintain  the  action,  is 
likewise  untenable.     As  before  remarked,  the  action  is  not  on  the  bill 


214  IN   WHOSE   NAME   THE   ACTION   SHOULD   BE    BROUGHT. 

of  sale,  but  on  a  contract  distinct  from  it,  and  which  is  dependent  upon 
evidence  outside  of  the  bill  of  sale.  I  think,  therefore,  that  the  action 
was  properly  brought  in  the  name  of  the  plaintiffs.  ^ 

Judgment  ajfirmcd. 


>'K 


THE  FIRST  NATIONAL   BANK  OF  GREENFIELD  v.  THE  MA- 
RIETTA AND  CINCINNATI  RAILROAD  COMPANY. 

Supreme  Court  of  Ohio,  December  Term,  1870. 

[20  O.  S.  259.] 


On  October  3,  1S65,  the  plaintiff,  The  First  National  Bank  of  Green- 
Y^'      field,  filed  in  the  Superior  Court  of  Cincinnati  a  petition  alleging  that 
\       y^  the  defendant  was  a  corporation  created  by  the  laws  of  Ohio,  and,  as 
*  I//       such,  owned  and  operated  a  railroad  from  Marietta  to  Cincinnati  through 
t^         the  town  of  Greenfield,  that  said  road  crossed  a  certain  creek,  called 
Lee's  Creek,  by  means  of  a  bridge  built  by  the  defendant,  and  that  the 
defendant  was  a  common  carrier  of  passengers  and  goods  over  its  rail- 
road by  means  of  locomotives  and  cars  ;  that  on  February  14,  1865,  the 
plaintiff  was  the  owner  and  possessor  of  a  package  of  legal  tender  notes, 
issued  by  the  United  States,  to  the  amount  of  $4,000,  and  wishing  to 
transmit  the  same  to  Cincinnati,  delivered  them  to  Thomas  G.  INIcElroy, 
its  agent,  to  be  carried  by  him  to  said  city  ;  that  the  said  McElroy,  for 
that  purpose  entered  one  of  the  cars  of  the  defendant  at  Greenfield,  one 
of  a  train  provided  by  defendant  for  the  purpose,  as  a  passenger,  to  be 
carried  by  the  defendant  over  its  railroad  to  Cincinnati,  with  said  pack- 
age of  money  of  the  plaintiff  in  his  possession  ;   that  the  defendant 
therefore  caused  its  locomotive  and  train  of  cars,  with  the  said  INIcElro}- 
jjtiT'  therein,  having  on  his  person  the  said  package  of  notes,  to  go  and  be 
0"    .     drawn  upon  the  said  bridge  over  the  said  creek  and  proceed  to  Cincin- 
y(S        nati  ;  that  said  bridge  was  so  carelessly,  negligently,  and  unskilfully 
^  constructed  and  maintained  by  the  defendant,   that  the  central   pier 
fA    .  ,  became  and  was  undermined  b}-  the  waters  of  the  creek,  and  fell,  whereby 
Jr    the  bridge  became  insufficient  to  support  the  weight  of  the  locomotive 
\f'^        ''^i^d  train  of  cars  so  upon  same  as  aforesaid  ;  and  that  the  defendant 
so  carelessly,  unskilfully,  and  negligently  ran  the  said  train  upon  the 
approach  to  said  bridge,  that  although  the  said  pier  had  fallen  and  the 
bridge  had  thereby  been  rendered  unsafe  for  the  passage  of  the  said  train 
six  hours  before  its  arrival,  yet  the  defendant  did  not  cause  the  same 
to  stop,  but  suffered  the  same  to  proceed  upon  the  said  bridge  for  the 
purpose  of  crossing  the  same  ;  by  reason  whereof,  the  weight  of  the  loco- 
motive and  train  of  cars  crushed  the  bridge  and  fell  down  into  the  creek, 
whereby  the  said  McElro}',  so  upon  the  said  car,  was  killed  and  the 

1  Only  so  much  of  tlie  case  is  given  as  refers  to  the  one  point. 


NATIONAL    liANK    V.    MARIETTA    RAILROAD.  215 

ruins  of  the  cars  having  been  set  on  fire  by  the  overturning  of  the  stoves 
therein,  his  body  was  consumed,  and  the  package  of  money  burnt  up 
and  destroyed  ;  to  the  plaintiff's  damage,  etc. 

To  this  petition  the  defendant  demurred,  on  the  ground  that  the  facts 
stated  were  not  sufficient  to  constitute  a  cause  of  action. 

This  demurrer  was  sustained,  and  judgment  rendered  for  the  defendant. 

To  reverse  this  judgment  a  petition  in  error  was  filed  in  this  court. 

^.  &S.  R.  Matthews  (with  Mills  Gardner^),  for  plaintiff  in  error. 

Hoadfy,  Jackson  &  Johnson,  for  defendant  in  error.^ 

Scott,  J.— If  the  facts  stated  in  the  petition  show  the  defendant  to 
liave  been  guilty  of  a  breach  of  contract,  or  derelict  in  respect  to  a  legal 
duty,  we  think  the  pInintifF's  claim  rnn  not  be  resisted  on  the  ground 
that  the^cbntract  was  made,  not  with  the  plaintiff,  but  with  an  agent 
actiiig  in  his  own  name,  or  that  the  supposed  duty  was  owing  to  J:he 
agent  and  not  to  his  principal.  The  bank  had  the  same  right  to  send 
the  notes  in  controversy  by  McElroy  as  a  special  agent,  as  it  would  to 
have  carried  them  over  the  same  road  under  the  same  circumstances 
through  its  president,  cashier,  or  anj^  other  officer;  and  McElroy  had 
the  same  right  to  carry  the  notes  for  the  bank,  as  for  himself,  had  they 
"been  his  property.  We  fully  concur  with  the  supreme  court  of  the 
United  States  in  the  case  of  The  Neiv  Jersey  Steam  Navigation  Co.  v. 
The  Merchants'  Bank  oj  Boston,  6  Howard,  344  (cited  by  counsel), 
where  it  is  said:  "The  cases  are  numerous  in  which  the  general  owner 
has  sustained  an  action  of  tort  against  the  wrongdoer  for  injuries  to 
the  property  while  in  the  hands  of  the  bailee.  The  above  cases  (refer- 
ring to  cases  previously  cited,)  show  that  it  may  be  equally  well 
sustained  for  a  breach  of  contract  entered  into  between  the  bailee  and 
a  third  person.  The  court  look  to  the  substantial  parties  in  interest, 
with  a  view  to  avoid  circuity  of  action,  saving,  at  the  same  time,  to  the 
defendant  all  the  rights  belonging  to  him  if  the  suit  had  been  in  the 
name  of  the  agent. 

We  may  add  that  our  code  of  civil  procedure  requires  actions  gener- 
ally i7j  he  |iinjiiiQutcd  in  Lhc  nuiirc  ot  theTeal  party  in  interest :  and^f 
the  plaintiff's  property  was  destroyed  solely  through  the  negligence  of 
the  defendant,  and  without  fault  on  the  part  of  the  agent,  it  is  clear 
that  the  estate  ol  the  latter  can  not  be  held  liable  for  tbp  1n^<^,  and  the 
liabiTlty,  it  there  be  one,  rests  on  the  defendant^  We  think,  then,  that 
the  case  stands  on  the  same  grounds  and  presents  precisely  the  same 
questions,  as  though  the  notes  had  been  the  propert}-  of  INIcElroy,  and 
he  having  survived,  had  brought  this  action  to  recover  of  the  defendant 
for  their  loss.^ 

1  The  arguments  are  omitted. 

2  The  demurrer  was  however  sustained  upon  the  ground  (i.)  that  the  case  stated  in  the  peti- 
tion did  not  come  within  the  operation  of  the  maxim  which  requires  every  one  so  to  conduct 
his  business  as  not  to  do  injury  to  another  ;  and  (2.)  that  the  defendant  as  a  common  carrier 
of  passengers  was  not  liable  for  the  loss  of  money  kept  in  the  sole  custody  of  a  passenger, 
and  carried  by  him  without  notice  to  the  defendant,  for  a  purpose  unconnected  with  the 


(^ 


216  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 


ST.  LOUIS,  KANSAS  CITY  &  NORTHERN  RAILWAY  CO.   v. 
S.  O.  THACHER. 

Supreme  Court  of  Kansas,  July  Term,   1874. 

[13  Ka7i.  564.] 

Action  by  S.  O.  Thatcher  as  plaintiff  to  recover  for  damages  sustained 
to  17  of  the  35  head  of  cattle  mentioned  in  the  contract  set  out  in  the 
case  of  the  St.  Loids,  Kansas  City  &  Northerri  Railway  Co.  v.  Piper, 
reported  in  13  Kan.  505,  510.^ 

All  the  questions  in  this  case  were  determined  in  the  case  cited, 
except  whether  Thacher  could  maintain  an  action  in  his  own  name  on 
said  contract.  Thacher  had  judgment  at  the  September  term,  1873,  of 
the  district  court,  and  the  Railway  Company  brings  the  case  here  on 
error. 

Pratt  d-  Ferry,  for  plaintiff  in  error. 

Thacher  c-  Stephens,  for  defendant  in  error. - 

expenses  of  the  journey,  notwithstanding  such  loss  was  occasioned  by  the  negligence  of  the 
defendant's  servants.— £rf. 

1  The  case  and  the  contract  referred  to  here  were  as  follows  :  On  November  27,  1872,  one 
Piper  shipped  from  the  stockyards  at  Kansas  City,  by  the  railway  of  plaintiff  in  error,  a 
lot  of  cattle  to  Chicago.  The  shipment  was  under  a  written  contract,  of  which  the  follow- 
ing is  a  copy  : 

"THIS  agreement,  made  this  27th  of  November,  1S72,  between  the  St.  Louis,  Kan- 
sas City  &  Northern  Railway  Company,  party  of  the  first  part,  and  G.  If.  Piper,  care 
Hugh,  Reeves  &  Sturgis,  party  of  the  second  part,  untnesseth:  That  the  party  of  the  first 
part  will  forward  for  the  party  of  the  second  part  the  following  freight,  to-wit,  two  cars  of 
cattle,  35  head,  M.  or  L-,  from  Kansas  City  to  Chicago,  at  the  rate  of  $70  rer  car,  which  is  a 
reduced  rate,  made  expressly  in  consideration  of  this  agreement,  in  consideration  of  which 
the  party  of  the  second  part  agrees  to  take  care  of  said  freight  while  on  the  trip,  and  load 
and  unload  the  same  at  his  or  their  own  risk  and  expense,  and  that  the  party  of  the  first 
part  and  connecting  lines  over  which  such  freight  may  pass  shall  not  be  responsible  for  any 
loss,  damage,  or  injury  which  may  happen  to  said  freight  in  loading,  forwarding  or  unload- 
ing ;  by  sufTocation,  or  other  injury  caused  by  overloading  cars:  by  escapes  from  anj'  cause 
whatever;  or  by  any  accident  in  operating  the  road,  or  delay  caused  by  storm,  fire,  failure 
of  machinery  or  cars,  or  obstruction  of  track  from  any  cause,  or  by  fire  from  any  cause 
whatever,  or  by  any  other  cause  except  gross  negligence;  and  that  said  party  of  the  first 
part  and  such  connecting  lines  shall  be  deemed  merely  forwarders,  and  not  common-car- 
riers, and  only  liable  for  such  loss,  damage,  injury  or  destruction  of  such  freight  as  may  be 
caused  by  gross  negligence  only,  and  not  otherwise;  and  the  said  party  of  the  second  part 
agrees  to  assume  all  risk  of  damage  or  injury  to,  or  escape  of,  the  live  stock  which  may 
happen  to  them  while  in  the  stock  yards  awaiting  shipment.  It  is  also  further  agreed 
between  the  parties  hereto,  that  the  person  or  persons  riding  free  under  this  contract,  in 
charj;e  of  the  stock  do  so  at  their  own  risk  of  personal  injury  from  whatever  cause. 
Charges  $28.50." 

The  transportation  was  delayed.  The  cattle  were  injured.  Their  value  in  the  Chicago 
market  was  depreciated  and  the  shipper  was  put  to  extra  expense  for  feed,  etc.,  for  all 
which  he  brought  his  action  before  a  justice  of  the  peace  of  Douglas  county.  He  recovered 
a  judgment  of  $300  before  the  justice,  from  which  the  company  appealed.  In  the  district 
court  he  recovered  a  judgment  of  S2S0.15.  The  case  going  up  on  error,  the  judgment  was 
affirmed.     St.  Louis,  Kansas  City  &  Northern  Ry.  v.  Piper  (1S74),  13  Kau.  505,  510,  513.— ^rf. 

2  The  arguments  are  omitted. 


ST.    LOUIS    RAILWAY    :'.    THACHER  217 

Valentine,  J.— On  November  27th  1872,  G.  W.  Piper  shipped  thirty- 
five  head  of  cattle  from  Kansas  City  to  Chicago  under  a  written  con- 
tract between  himself  and  the  plaintiff  in  error,  a  copy  of  which  contract 
will  be  found  in  the  case  of  this  plaintiff  in  error  against  Piper,  recently 
decided  in  this  court ;  {ante,  510.)  Eighteen  head  of  said  cattle  belonged 
to  Piper,  and  the  other  seventeen  head  belonged  to  the  defendant  in  error, 
S.  O.  Thacher.  With  reference  to  these  seventeen  head  of  cattle,  Piper 
was  merely  the  agent  of  Thacher  for  their  transportation  and  sale. 
There  were  delays  in  their  transportation  claimed  to  have  been  caused 
by  the  neglect  of  the  railway  company,  in  consequence  of  which  delays 
the  cattle  were  injured,  their  value  depreciated,  and  extra  expense 
incurred.  Piper  and  Thacher  then  sued  the  railway  company,  each 
bringing  a  separate  action  for  his  own  separate  loss,  and  each  obtained 
a  judgment  against  the  railway  company.  The  railway  company'  then 
brought  both  of  the  cases  to  this  court  for  review.  We  have  already 
decided  Piper's  case,  and  in  that  decision  have  disposed  of  every  legaj 
question  involved  in  this  case  except  one.  That  question  is,  whether 
Thacher  can  maintain  a  separate  action  for  his  own  separate  loss,  not- 
withstanding the  fact  that  the  railway  company  contracted  with  Piper 
alone,  and  had  no  knowledge  of  Thacher's  interest  in  the  transaction. 

That  Piper  could  alone  maintain  an  action  for  the  whole  loss,  includ- 
ing that  sustained  by  Thacher  as  well  as  that  sustained  by  himself,  we 
suppose  will  not  be  questioned  ;  for  "a  person  with  whom  or  in  whose 
name  a  contract  is  made  for  the  benefit  of  another  .  .  .  may  bring  an 
action  without  joining  with  him  the  person  for  whose  benefit  it  was 
prosecuted."  (Civil  Code,  §  28.)  But  whether  what  might  be  a  single 
cause  of  action  in  favor  of  Piper  may  be  so  divided  as  to  give  to  Piper 
and  Thacher  each  a  cause  of  action  for  that  portion  of  the  loss  which 
each  has  severally  sustained,  is  the  question  now  to  be  considered  by 
this  court.  If  Thacher  had  owned  all  the  cattle,  instead  of  only  a  por- 
tion of  them,  he  could  unquestionably  have  maintained  an  action  for 
the  whole  loss  sustained,  for  it  is  generally  conceded  that  under  our 
code,  as  well  as  in  equity,  where  a  contract  is  made  by  an  agent  for  the 
benefit  of  his  principal  the  principal  may  sue  on  the  contract,  even 
though  the  agent  may  also  have  the  right  to  sue,  and  even  where  the 
contract  is  made  in  the  name  of  the  agent,  and  the  principal's  name  is 
not  disclosed.!  The  principal  in  every  such  case  is  "the  real  party  in 
interest,"  and  under  our  code  the  rule  is,  that  "  ever>^  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest."  (Code,  §26.) 
Every  action  allowed  to  be  prosecuted  in  any  other  manner  constitutes 
an  exception  to  a  general  rule.  But  these  exceptions  are  generally  not 
exclusive.  For  instance,  there  are  many  actions  that  ma}-  be  prosecuted 
in  the  name  of  the  agent,  or  in  the  name  of  the  principal,  at  the  election 

1  Citing  Erickson  v.  Compton,  6  How.  Pr.,  471;  Union  India  Rubber  Company  v.  Tomlin- 
son,  I.E.  D.  Smith,  364;  Morgan  v.  Reed,  7  Abbott,  215;  Thompson  v.  Thompson,  4  Ohio 
St.,  274;  Brooks  V.  Minturn,  i  Cal.,  481  ;    Ruiz  v.  Norton,  5  Cal.  358. 


218  IN  WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

of  the  parties;  and  if  Thacher  had  owned  all  the  cattle  in  this  case 
this  unquestionably  would  be  one  of  such  actions.  ( i  Waite's  Prac. 
96.)  This  should  be  so,  for  on  the  one  hand  there  are  man}-  cases  where 
the  principal  resides  in  another  State  and  could  not  well  attend  person- 
ally to  the  suit  himself,  and  on  the  other  hand  there  are  other  cases  where 
the  agent  ma}-  have  been  discharged  and  no  longer  has  anj-  interest  in 
the  principal's  affairs.  Indeed,  the  agent's  interest  may  become  hostile 
to  those  of  the  principal's,  and  in  such  a  case  it  would  not  be  well  for 
the  agent  alone  to  have  the  power  to  prosecute  the  action  for  the  prin- 
cipal. In  the  present  case  Piper's  agencj'  ceased  when  he  shipped  said 
cattle  to  Chicago  and  sold  them;  and  it  would  seem  absurd  that  he  alone 
could  sue  for  Thacher 's  loss.  Suppose  he  should  neglect  or  refuse  to 
sue,  would  Thacher  be  without  a  remedy?  And  having  no  interest  in 
Thacher's  loss,  he  might  well  neglect  or  refuse  to  sue.  As  the  railway- 
company  were  liable  on  onh-  one  contract,  and  as  both  Piper's  and 
Thacher's  actions  were  prosecuted  in  the  same  court,  and  at  the  same 
time,  it  is  possible  that  the  railway  compan}-  could  have  compelled  a 
consolidation  of  the  two  suits  ;  or  it  is  possible  that  the}-  could  have 
compelled  Thacher  to  make  Piper  a  party,  either  plaintiflf  or  defendant, 
in  Thacher's  suit.  But  none  of  these  questions  having  been  raised  in 
the  court  below,  we  do  not  choose  to  decide  them  now.  There  was  no 
attempt  made  to  consolidate  the  two  suits.  There  was  no  attempt 
made  to  make  Piper  a  party  in  Thacher's  suit.  And  there  was  no 
claim  made  that  there  was  a  defect  of  parties,  either  plaintiflf  or 
defendant.  The  suit  was  tried  upon  its  merits,  and  upon  its  merits 
Thacher  recovered  the  judgment  of  which  the  plaintiflf  in  error  now 
complains ;  and  under  the  circumstances  of  this  case  we  think  that 
the  judgment  was  correct,  and  that  the  court  below  did  not  err  in  ren- 
dering the  same. 

And  by  allowing  Thacher  to  recover  it  can  hardly  be  said  that  it  is  a 
division  of  a  single  cause  of  action  into  two  separate  causes  of  action. 
It  is  true,  that  the  contract  under  which  both  Piper's  and  Thacher's 
causes  of  action  arose  is  a  single  contract,  3-et  as  the  cattle  belonged  to 
separate  owners  the  railway  compan}^  by  causing  the  cattle  to  be 
injured,  created  two  causes  of  action,  one  in  favor  of  Piper,  and  the 
other  in  favor  of  Thacher,  and  each  was  created  at  the  same  time, 
neither  having  precedence  to  the  other  with  regard  to  time.  And  the 
rule  is,  as  we  have  before  seen,  that  Thacher  should  sue  for  his  own 
loss,  although  by  wa}-  of  exception  to  the  rule  Piper  might  aLso  sue  for 
Thacher's  loss,  if  Thacher  himself  had  not  done  so.  But  if  Piper 
should  have  sued  for  both  his  own  loss  and  that  of  Thacher's,  in  the 
same  suit,  and  as  one  cause  of  action,  it  would  properh-  have  been  the 
consolidation  of  two  causes  of  action. 

To  recapitulate  :  The  railway  company-  by  injuring  the  cattle  crea- 
ted two  causes  of  action.  These  may  be  prosecuted  separately  b}^  the 
respective  owners  of  the  cattle,  or  may  be  consolidated  and  prosecuted 


SCHAHFKR    t'.    HENKLE.  219 

b}-  Piper  alone.  But  even  if  by  allowing  each  owner  of  the  cattle  to 
prosecute  for  his  own  loss  would  be  to  divide  a  single  cause  of  action 
into  two  separate  causes  of  action,  still  it  is  possible  that  such  a  thing 
may  be  done.  In  New  York  it  has  been  held,  that  when  an  entire 
demand  has  been  assigned  in  parts  to  several  persons,  the  assignee  of 
one  of  the  parts  may  maintain  an  action  to  recover  his  part.^ 

But  it  would  seem  in  such  cases  that  all  persons  interested  in  the 
matter  should  be  made  parties  to  the  action,  if  any  party  should 
demand  it.  The  judgment  of  the  court  below  is  affirmed. 

All  the  justices  concurring.  f* 


SCHAEFER  v.  HENKEL. 
Court  of  Appeals  of  New  York,   December  io,   1878.  \ 
[75  A^.    Y.  378.] 


r 


Appeal  from  a  judgment  of  the  General  Term  of  the  Court  of  Common 
Pleas  affirming  a  judgment  in  favor  of  the  defendant,  entered  upon  an 
order  dismissing  the  complaint  on  trial. 

This  action  was  upon  a  lease,  under  seal,  of  certain  premises  in  New 
York,  which  lease  was  executed  by  "J.  Romaine,  agent,"  as  lessor  and 
b}'  defendant  as  lessee. 

The  facts  appear  in  the  opinion. 

James  A.  Deermg,  for  appellants. 

Ja7nes  Clark  and/.  Henry  McCarthy,  for  respondent.- 

Miller,  J. — The  plaintiffs  were  not  parties  to  the  lease  upon  which 
this  action  was  brought.  It  was  not  signed  by  them.  Their  names 
did  not  appear  in  it,  and  there  was  nothing  in  the  lease  to  show  that 
they  had  anything  to  do  with  or  any  interest  in  the  demised  premises 
or  the  execution  of  the  lease,  or  that  it  was  executed  in  their  behalf. 
It  was  made  by  one  Brown,  as  lessor,  who  is  described  therein,  and  who 
signed  it,  as  agent;  but  it  is  not  stated  in  the  lease  for  whom  he  acted. 
The  covenants  are  all  between  "J.  Romaine  Brown,  agent,  the  party  of 
the  first  part,"  and  the  defendant,  as  party  of  the  second  part;  and  it  is 
not  made  to  appear  that  the  defendant  had  any  knowledge  or  intima- 
tion whatever  that  Brown  was  acting  on  the  behalf  of  the  plaintiffs  or 
for  their  benefit.  For  whom  Brown  was  agent  was  not  made  known  to  the 
defendant,  and  it  only  appears  by  parol  proof  upon  the  trial  that  Brown 
was  authorized  orally  by  the  plaintiffs  to  make  a  demise  of  the  premises 
described  in  the  lease.  The  signature  of  Brown  is  as  agent,  and  his 
seal  is  attached  to  the  instrument  and  the  same  is  also  signed  and 
sealed  by  the  defendant.     The  plaintiffs,  without  any  assignment  of 

1  Citing  Cook  v.  Genesee  Mutual  Ins.  Co.,  8  How.  Pr.,  514  ;  Field  v.  Mayor  of  New  York, 
6  N.  Y.  179  ;  Christie  v.  Herrick,  i  Barb.  Ch.,  258,  259. 

2  The  arguments  are  omitted. 


\-r 


220  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

Brown's  interest  under  the  lease,  bring  this  action  to  recover  the  rent 
unpaid,  upon  the  ground  that  Brown  merely  acted  as  their  agent  by 
their  authority,  and  that  they  are  the  actual  parties  in  interest. 

The  question  to  be  determined  is  whether  the  actual  owners  of  the 
lease,  which  is  in  the  nature  of  a  deed  inter  partes,  which  was  not  and 
does  not  on  its  face  show  that  it  was  executed  by  them,  but  which  does 
show  an  execution  by  a  third  person,  claiming  to  act  as  agent  without 
disclosing  the  name  of  his  principal,  and  which  contains  covenants 
between  the  parties  actually  signing  and  sealing  the  same,  can  maintain 
an  action  upon  it  for  the  rent  reserved  therein,  even  although  the 
person  who  executed  the  same,  describing  himself  ' '  agent  and  party  of 
the  first  part,"  had  oral  authority  to  enter  into  the  contract,  and  acted 
.        •     as  the  owner's  agent  in  the  transaction. 

^  /^  The  rule  seems  to  be  quite  well  established,  that  in  gen.£raLaa. action 
4l  upon  a  sealpfTTSstrmhent  of  this  dp'^f-riptinn  must  be  brought  bv  and,  in 
^kj  TfieTiame  of  a  person  who  is  a  party  to  such  instrument,  iikI  that  a 
j^K**  ttird  person  or  a  stranger  to  the  instrument  can  not  maintain  an  action 
" '  upon  the  same.  The  question  presented  has  been  the  subject  of  fre- 
.  quent  consideration  in  the  courts,  and  I  think  it  is  established  in  this 
State  that  where  it  distinctly  appears  from  the  instrument  executed 
that  the  seal  affixed  is  the  seal  of  the  person  subscribing,  who  desig- 
nates himself  as  agent,  and  not  the  seal  of  the  principal,  that  the  former 
only  is  the  real  party  who  can  maintain  an  action  on  the  same.  He 
alone  enters  into  the  covenants  and  is  liable  for  any  failure  to  fulfill, 
and  he  only  can  prosecute  the  other  party.  He  is  named  in  the  inden- 
ture as  a  party,  and  an  action  will  not  lie  on  behalf  of  or  against  any 
person  who  is  not  a  party  to  the  instrument,  or  who  does  not  lawfully 
represent  or  occupy  the  place  of  such  party.- 

It  is  unnecessary  to  review  all  the  decisions  bearing  on  the  question, 
as  in  a  very  recent  case  the  principle  discussed  has  been  considered  by 
this  court,  and  the  whole  subject,  as  well  as  the  decisions  relating  to  the 
same,  deliberately  and  carefully  reviewed.  See  Briggs  v.  Partridge,  4 
N.  Y.  357.  In  the  case  cited,  an  action  was  brought  to  recover  pur- 
chase-money unpaid  upon  a  contract  for  the  sale  and  purchase  of  lands. 
The  complaint  alleged  that  the  plaintiff  entered  into  an  agreement  in 
writing  with  one  Hurlburd,  who  was  acting  under  the  authority  of  the 
defendants,  whereby  the  plaintiffs  sold  and  the  defendants  through 
Hurlburd  bought  a  certain  described  piece  of  land,  for  a  price  named, 
which  price  the  defendants,  through  their  agent,  Hurlburd,  agreed  to 
pa}^  as  specified.  The  agreement  was  in  writing,  but  did  not  show 
that  Partridge  was  a  principal  party,  and  was  signed  and  sealed  by 
Hurlburd  individually.  The  name  of  Partridge  did  not  appear  in  the 
instrument,  but  the  plaintiffs  offered  to  prove  that  Hurlburd  was  acting 
solely  for  and  under  the  direction  of  Partridge,  who  made  or  caused  the 
first  payment  to  be  made  as  Partridge's  agent  or  trustee  in  the  transac- 
tion, and  that  his  authority  was  oral.     Proof  was  also  offered  to  show 


SCHAEFER   V.    HENKEL.  221 

that  Hurlburd  was  constituted  such  agent  by  parol;  and  that  the  plain- 
tiffs did  not  know  that  Partridge  was  the  real  principal.  The  com- 
plaint was  dismissed,  and  it  was  held  by  the  court  that  a  contract  of 
this  description  under  seal  could  not  be  enforced  as  the  simple  contract 
of  another  not  mentioned  in  or  a  party  to  the  instrument,  on  proof  that 
the  vendee  named  had  oral  authority  from  such  other  to  enter  into  the 
contract,  and  acted  as  agent  in  the  transaction;  at  least  in  the  absence 
of  proof  of  some  act  of  ratification  on  the  part  of  the  undisclosed  princi- 
pal. The  opinion  of  Andrews,  J.,  in  the  case  cited,  fully  covers  the 
question  now  presented;  and  it  appears  to  be  unnecessary  to  review  or 
examine  the  prior  cases  which  have  a  bearing  upon  the  subject.  Unless 
some  distinction  of  vital  character  exists  between  that  case  and  the 
one  now  to  be  determined,  the  former  must  be  regarded  as  decisive  oi 
the  case  at  bar. 

The  claim  of  the  learned  counsel  for  the  appellant,  that  as  the  con- 
tract in  case  of  a  lease  is  not  required  to  be  under  seal,  it  may  be 
regarded  as  a  simple  contract,  upon  which  the  principal  may  sue  or  be 
sued  in  his  own  name,  and  the  seal  may  be  rejected  as  surplusage,  is 
also  considered  in  the  opinion  in  the  case  cited  ;  and  without  indorsing 
the  correctness  of  the  cases  relied  upon,  it  is  remarked  that  there  are 
cases  which  held  this  doctrine;  "but  the  principal's  interest  in  the 
contract  appears  upon  its  face,  and  he  has  received  the  benefit  of  per- 
formance by  the  other  party,  and  has  ratified  and  confirmed  it  by  acts  in 
pais. ' '  Tl— igthprpforp  settlpd  law,  that  in  order  to  take  a  case  out  of  the  f 
general  rule,  where  the  contract  is  one  which  is  valid  without  a  seal, 
a!hd  the  seal  is  therefore  ol'flo  account,  it  must  appear  that  the  contract  1^ 
was  really  made  on  behalf  of  the  principal,  from,  the- -instrument,  and 
that  the  party  derived  benefit  from  and  accepted  and  confirmed  it  by  acts. 
oTi  his  part. 

Within  this  rule,  it  remains  to  be  considered  whether  the  case  at  bar 
differs  from  that  cited.  An  attempted  distinction  is  sought  to  be 
maintained,  for  the  reason  that,  in  the  case  cited,  Hurlburd,  the  agent, 
did  not  enter  into  the  agreement  to  sell  as  agent,  while  here  Brown 
signs  as  agent,  which,  it  is  claimed,  is  notice  of  the  capacity  in  which 
he  contracts.  This,  we  think,  is  not  sufficient ;  and  to  establish  any 
real  distinction  it  should  appear  for  whom  he  was  agent,  and  that  the 
parties  claiming  were  his  principals.  The  plaintiffs  not  being  named 
in  the  lease,  and  it  not  appearing  that  they  had  anj^  interest  therein, 
there  is  no  more  ground  for  claiming  that  Brown  was  their  agent  than 
that  he  was  the  agent  of  some  stranger.  The  use  of  the  word  age?it  has 
but  little  significance  of  itself,  and  as  the  principals  are  not  named,  can 
not  be  regarded  as  applying  more  to  one  person  than  to  another.  It  did 
not  take  away  from  Brown's  obligation,  because  he  is  named  as  agent. 
The  covenants  are  between  the  parties  who  are  only  named  in  the  instru- 
ment and  no  other  parties.  Any  other  interpretation  would  be  a  con- 
travention of  its  obvious  import.    As  was  said  in  the  case  cited  :     ' '  We 


222  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    nROUGHT. 

find  710  authority  for  the  proposition  that  a  contract  under  seal  may  be 
turned  into  the  simple  contract  of  a  party  not  in  any  way. appearing  on 
its  face  to  be  a  party  to  or  interested  in  it,  on  proof  dehors  the  instru- 
ment, that  the  nominal  party  was  acting  as  the  agent  of  another. "  To 
render  the  principal  liable,  where  there  is  a  contract  by  deed,  made  by 
an  attorney  or  agent,  it  must  be  made  in  the  name  of  the  principal : 
Huntington  v.  Knox,  7  Cush.,  374,  cited  and  approved  in  Briggs  z\ 
Partridge,  supra.  It  would  be  going  very  far  to  hold  that  a  distinc- 
tion so  trifling  and  unimportant  would  authorize  a  disregard  of  the 
decision  cited,  and  thus  virtually  establish  a  new  and  different  principle 
than  the  one  which  has  been  settled  thereby. 

Another  point  is  made,  that  the  plaintiffs  have  ratified  the  contract, 
and  the  defendant  has  been  in  possession,  and  have  paid  the  plaintiffs 
$150  on  account  of  the  rent.  There  is  no  evidence  of  any  possession 
otherwise  than  that  under  the  lease  which  was  executed  by  Brown  ;  and 
the  presumption  is  that  it  was  in  pursuance  thereof,  and  not  under  the 
plaintiffs.  Nor  does  the  proof  show  any  pa3'ment  of  rent  to  the  plain- 
tiffs. The  complaint  alleges  that  no  part  has  been  paid  except  the  sum 
of  $150  ;  and  the  proof  shows  that  a  balance  was  due,  deducting  this. 
It  may  therefore  have  been  paid  to  Brown  and  not  to  the  plaintiffs,  and 
no  presumption  arises  that  it  was  to  the  plaintiffs.  The  case  oi  Briggs 
V.  Partridge,  supra,  disposes  of  the  question  considered  ;  and  if  we 
follow  that  decision,  there  is  no  ground  for  claiming  that  the  plaintiffs 
can  maintain  the  action. 

TTls  also  urged  that  the  plaintiffs  can  maintain  the  action  under  the 
code  (§111)  as  the  real  parties  in  interest.  One  great  object  of  this 
provision  was,  to  enable  an  assignee  of  a  chose  in  action  to  sue  in  his 
own  name  ;  and  it  would  be  placing  a  construction  upon  this  provision 
which  is  I  think  unwarranted,  to  hold  that  a  sealed  instrument  executed 
by  parties  belongs  to  another,  without  an}'  transfer  whatever  by  a  party 
named  therein.  TTip  p;^rtipci  wlm^p  ^io-natures  and  seals  are  afllixed  to 
such  an  instrument,  and  who  alone  are  named  therein,  are  the  real 
parties  in  interest,  for  they  onh'  ^t-p  l->nnrir1  th?r^by  No  right  there- 
Tore  exists  in  a  strang-pr  a<;  n<rnir|c;t  one  of  them,  until  there  is  an 
assignment  of  the  interest  of  such  part}-.  It  is  enough  to  say  that  the 
plamtitts  were  not  lawfully  entitled  to  the  rent,  under  the  lease,  or  the 
defendant  bound  to  pay  them  therefor,  until  a  transfer  of  the  lessor's 
interest,  or  until  somejre,CQgiu.tiQii  of _tlie,^aintiff's  title  thereto  by  the 
defendant,  jvvhich..  does  not  appear  to  have  been  made.  For  anything 
wliich~appears,  another  suit  may  have  been  brought  by  Brown  to 
recover  the  very  same  rent,  and  it  is  not  clear  what  valid  defence  could 
be  interposed  to  such  an  action. 

The  waiver  of  further  testimony  on  the  trial  by  the  defendant  did 
not,  we  think,  aid  the  plaintiffs'  case.  It  was  accompanied  by  a  dis- 
tinct statement  of  the  grounds  upon  which  the  defendant  claimed  that 
plaintiffs  had  failed  to  make  out  a  case,  and  that  it  was  not  claimed,  on 


SCIIAEI'ER    r.    HENKEL. 


223 


the  part  of  the  plaintiffs,  that  the  premises  described  in  the  complaint 
were  let  or  demised  to  the  defendant,  otherwise  than  by  the  indenture 
of  lease  or  otherwise  occupied  by  him.  This  left  the  case  to  be  deter- 
mined upon  by  the  lease  as  given  in  evidence,  and  did  not  warrant  an 
inference  that  there  was  other  evidence  to  establish  the  plaintiffs'  claim. 
It  is  urged  that  it  is  not  essential  to  the  plaintiffs'  right  to  recover 
that  they  should  claim  under  the  lease,  but  as  the  contract  is  one  not 
required  to  be  under  seal  or  even  in  writing,  there  is  no  ground  for 
claiming  that  the  principal  can  be  deprived  of  his  remedy.  It  is  a  com- 
plete answer  to  this  position  to  say  that  no  such  question  was  presented 
upon  the  trial,  and  the  plaintiffs  do  claim  under  the  lease.  The  com- 
plaint sets  it  up,  and  the  evidence  establishes  its  execution.  Had  the 
plaintiffs  sued  for  use  and  occupation,  claiming  that  Brown,  as  their 
agent,  had  acted  without  authority  in  taking  the  lease  in  his  own  name, 
and  that  it  really  was  made  for  the  plaintiffs'  benefit,  a  different  case 
would  arise.  But  such  is  not  the  fact;  but  the  claim  of  the  plaintiffs 
to  recover  rent  rests  upon  the  lease  entirely. 

Nor  can  it  be  claimed,  upon  any   valid  ground,  that  the   question 
now  presented  is  whether  the  lease  is  a  bar,  for  the  apparent  reason  that 
the  plaintiffs  have  made  the  lease  the  foundation   of  their  right  to 
recover,  and  claim  under  it,  and  under  no  other  or  different  agreement. 
Upon  the  trial,  the  plaintifF proved  by  the  agent.  Brown,  that  he  was 
authorized  orally  to  demise  the  premises,  in  the  complaint  mentioned, 
and  that  he  did  so  by  the  instrument  in  question.     It  was  also  proved 
that  the  defendant  entered  upon  the  premises  and  occupied  the  same; 
and  that  the  amount  claimed  was  due  thereon.     At  this  stage  of  the 
case,  the  defendant's  counsel  claimed  that  the  lease  was  not  the  act  and 
deed  of  the  plaintiffs';  and  that  they  had  no  cause  of  action  arising  out 
cf  the  same  against  the  defendant,  no  proof  being  offered,  and  it  not 
being  claimed  that  the  premises  were  let  other^vise  than  under  the  lease. 
The  plaintiffs  made  no  application  to  amend  the  pleadings,    nor  any 
claim  that  a  recovery  could  be  had  except  upon   the  lease.     As  no 
question  was  made  upon  the  trial  as  to  the  authority  of  the  agent  to 
make  the  lease  in  the  form  it  was  executed,  it  can  not  be  urged,   upon 
this  appeal,  that  the  question  arises  whether  the  agent  could  cut  off  the 
plaintiff's  rights  or  remedy.     In  the  absence  of  direct  proof  that  the 
agent  exceeded  his  authority,  and  without  the  presentation  of  such  a 
question  upon  the  trial,  it  is  difficult  to  see  upon  what  basis  any  such 
claim  rests.     Even  if,  in  a  suit  brought  for  that  purpose,  where  the 
complaint   sets   forth  all  the  facts,  the  acts  of  the  agent's,  when  he 
exceeds  his  powers,  may  be  disregarded,  there  is  no  principle  which 
upholds   this  doctrine,   and  no    authority   for  holding  that  when  the 
action  is  brought  upon  the  instrument  itself,  which  is  now  alleged  to 
have  been  unauthorized!  and  no  proof  given  of  an3^  want  of  authority 
or  point  made   upon   the  trial  on  the  subject,    that   the   plaintiff  can 
recover.     But   it  is  sufficient  to  say  that  the   plaintiffs   did  not  seek 


(^ 


224  IN    WHOSE    NAME   THE    ACTION    SHOULD    BE    BROUGHT. 

relief  upon  any  such  ground,  either  in  the  complaint  or  upon  the  trial. 
If  they  had  applied  to  amend  the  complaint,  it  would  have  rested 
with  the  court  to  determine  whether  the  amendment  proposed  was 
proper,  and  upon  what  grounds  or  terms,  if  any.  such  an  application 
should  be  granted. 

Some  authorities  are  cited,  for  the  purpose  of  upholding  the  position 
that  the  deed  may  be  resorted  to  as  evidence  of  the  terms  of  the  agree- 
ment, although  it  can  not  be  enforced  as  a  specialty.  Conceding  that 
this  may  be  done,  when  the  action  is  brought  setting  forth  the  want  of 
authority,  we  think  that  such  is  not  the  case  where  the  complaint  in 
the  action  is  founded  entirely  upon  the  instrument,  and  the  plaintiffs 
upon  the  trial  claimed  to  recover  solely  by  virtue  thereof  A  reference 
to  some  of  the  cases  relied  upon  does  not,  I  think,  sustain  the  doctrine 
contended  for,  where  no  issue  is  made  as  to  the  authority  of  the  agent. 
In  Evans  V.  Wells.  22  Wend.,  324,  the  action  was  brought  against  the 
makers  of  the  promissory  note  ;  and  the  question  involved  was  as  to 
the  authority  of  an  agent  to  execute  a  release  in  his  own  name  to  com- 
promise the  claim,  and  the  competency  of  proof  showing  a  ratification 
by  parol  and  acceptance  of  the  fruits  of  the  release,  as  well  as  the  effect 
of  the  same.  It  is  quite  manifest  that  the  testimony  was  competent,  as 
this  distinct  issue  was  presented  upon  the  trial ;  and  while  the  decision 
of  the  court  v.as  entirely  correct,  it  has  no  application  to  the  case  at  bar. 
It  may  be  added,  that  the  case  is  authority  against  the  plaintiffs,  as  it 
was  held  that  the  release  was  invalid  as  to  the  principal,  and  could  only 
be  made  binding  by  a  subsequent  ratification.  Haight  v.  Sahler,  30 
Barb.,  218,  holds  that  a  corporation  is  liable  upon  its  contract,  although 
the  agents  have  affixed  their  own  seals,  when  the  instrument  on  its 
face  purports  to  have  been  executed  by  the  corporation,  and  their  seals 
were  ratified  by  the  corporation,  and  it  is  apparent  that  there  was  no  inten- 
tion to  bind  the  agents.  This  was  decided  upon  the  authority  of  Ran- 
dall V.  Van  Vechten,  19  Johns.,  60  ;  but  neither  of  these  cases  affect  the 
question  now  considered.  The  other  cases  cited  do  not  aid  the  plain- 
tiffs' case,  or  present  the  characteristic  features  which  distinguish  the 
case  at  bar.  We  do  not  deem  it  necessarj^  to  examine  them  fully  ;  and 
it  is  enough  to  say  that  none  of  them  hold  that,  under  circumstances 
like  those  here  presented,  the  principal  can  recover. 

The  principle  has  long  been  settled  by  authority  that  to  render  an 
instrument  of  this  nature,  signed  by  an  agent  in  his  own  name,  bind- 
ing on  the  principal,  it  must  appear  from  the  contract  itself  that  it 
purports  to  be  made  by  the  principal,  before  it  can  be  considered  as 
obligatory  upon  the  principal.  See  Squeir  v.  Norris.  i  Lans.  282,  where 
the  authorities  are  considered.  This  rule  is  applicable  here;  and  it  is 
too  late,  we  think,  to  change  a  principle  which  has  so  long  been 
acquiesced  in. 


NICOLL   :'.    BURKK.  225 

We  find  no  error  on  the  trial,  and  are  of  opinion  that  the  judgment 

must  be  affirmed.' 

Church,  Ch.  J.,  Folger,  Andrews,  and  Earl,  JJ.,  concur. 

Rapallo  and  Allen,  JJ.,  dissent. 

Judgment  affirmed. 


NICOLL  V.  BURKE. 

Court  of  Appeals  of  New  York,  November  i8,  1879. 

[78  N.  Y.  580.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  City  of  New  York,  affirming  a  judgment  in  favor  of  plaintiffs, 
entered  upon  a  verdict. 

This  action  was  brought  to  recover  rent  alleged  to  be  due  under  a 
lease  of  certain  premises  in  the  city  of  New  York. 

Plaintiffs  gave  in  evidence  a  written  lease,  not  under  seal,  executed 
by  defendant,  dated  January  28,  1873,  in  which  the  leasors  are  thus 
named:  "  William  and  E.  A.  Cruikshank,  agents,  as  landlords."  The 
lease  w^as  for  a  term  of  one  year  from  May  i,  1873,  and  contained  an 
agreement  on  the  part  of  the  tenant  to  keep  the  premises  in  good  repair. 
Evidence  was  also  given  that  the  persons  named  had  verbal  authority 
to  lease  the  premises  as  agents  of  the  plaintiffs,  who  were  the  owners. 
This  evidence  and  the  lease  were  objected  to  on  the  ground  that  the 
lease  was  not  made  in  the  plaintiffs'  names;  the  objections  were  over- 
ruled and  exceptions  taken. 

Further  facts  appear  in  the  opinion. ^ 

1  Compare  Whitford  v.  Laidler  ( 1883),  94  N.  Y.,  145. 

"  The  plaintiffs  attached  to  their  names  in  the  contract  with  the  village  the  word 
^agents,'  and  it  appeared  upon  the  trial  that  in  the  making  of  the  contract  and  the  erection 
of  the  building  they  were  actually  the  agents  of  their  wives,  al  hough  the  contract  did  not 
purport  to  bind  and  did  not  describe  or  name  the  wives  as  principals.  In  form  it  bound 
the  plaintiffs  only.  They  were  obligees  in  the  bond  under  the  name  of  '  M.  Henricus  & 
Son,  agents,'  no  other  person  being  described  or  named  in  any  way  as  obligee.  One  of  the 
defences  insisted  upon  by  the  deiendant  was  that  the  plaintiffs  were  not  the  real  parties  in 
interest,  and  could  not  maintain  this  action  in  their  names.  The  bond  was  their  bond, 
although  the  word  'agents'  followed  their  names  therein.  The  defendant  did  not  bind 
himself  or  become  under  obligation  to  any  other  person,  and  the  plaintiffs  are  the  only 
persons  who  can  m.iintain  an  action  upon  the  bond,  a  sealed  instrument ;  and  so  it  has 
frequently  been  held.  (Briggs  v.  Partridge,  64  N.  V.  357  ;  Kiersted  v.  R.  R.  Co.,  69  id.  343  ; 
Schaefer  v.  Henkel,  75  id.  378.)  If  this  instrument  had  not  been  under  seal  a  different  rule 
would  have  applied,  and  the  real  parties  in  interest,  the  wives  of  these  plaintiffs,  for  whom 
thev  were  acting  as  agents,  could  have  maintained  an  action  thereon.  But  where  an  instru- 
ment is  under  a  seal,  no  person  can  sue  or  be  sued  to  enforce  the  covenants  therein  con- 
tained, except  those  who  are  named  as  parties  to  the  instrument  and  who  signed  and  sealed 
the  same."     Per  Earl,  J.,  in  Henricus  v.  Englert  (1893),  137  N.  Y.,  488,  494. 

2  Part  of  the  reporter's  statement  of  facts  is  omitted. 


226  IN  whosp:  namk  the  action  should  be  brought. 

Nelson  J.    Watcrbuiy,   for  appellant. 

Walter  D.  Edmonds,  for  respondents.' 

MiLivER,  J. The  plaintiffs  in  their  complaint  claim  to  recover  for 

the  rent  of  certain  premises  therein  described,  by  virtue  of  a  lease  made 
by  their  agents,  William  and  E.  A.  Cruikshank,  for  the  term  of  one 
year  from  the  first  day  of  May,  1873.  We  think  that  the  written  lease 
and  indorsements  on  the  same,  signed  by  the  defendant,  of  a  renewal 
thereof  from  year  to  year,  including  the  last  year,  to  recover  a  portion 
of  the  rent  for  w^hich  this  action  was  brought,  were  competent  evidence 
to  sustain  the  complaint. 

The  lease  purports  to  have  been  made  b}-  the  lessors  named  therein, 
who  are  stated  to  be  "agents,  as  landlords,"  with  the  defendant  in 
1873,  and  renewals  from  year  to  year  including  the  year  1876, 
are  indorsed  upon  the  same.  The  lease  as  well  as  the  indorse- 
ments are  signed  by  the  defendant  only  and  are  not  under  seal.  There 
was  evidently  a  counterpart  to  the  instrument  originally  signed  by  the 
defendant,  but  it  is  not  produced  and  the  proof  does  not  show  by  whom 
it  was  signed,  if  it  existed.  It  appears,  however,  that  the  Cruikshanks 
were  agents  of  the  testator  who  owned  the  premises ;  that  one  Nicoll 
had  charge  of  the  property  for  the  executors  in  1876  ;  and  that  the  last 
renewal  of  the  lease  was  made  under  his  direction  by  one  Augustus- 
Cruikshank,  who  was  the  successor  of  William  and  E.  A.  Cruikshank, 
who  were  named  in  the  lease,  as  alread}^  stated. 

The  lease  not  being  under  seal,  it  was  entirely  competent  evidence  as 
a  written  parol  executory  contract,  entered  into  by  an  agent  in  his  own 
name  within  his  authority,  although  the  name  of  the  principal  does 
not  appear  in  the  instrument.  The  principle  is  well  settled,  that  if  the 
agent  possesses  due  authority  to  make  a  written  contract  not  under 
seal  and  he  makes  it  in  his  own  name,  whether  he  describes  himself  as 
agent  or  not,  or  whether  the  principal  be  known  or  unknown,  his  prin- 
cipal may  be  made  liable  and  will  be  entitled  to  sue  thereon  in  all 
cases,  and  the  instrument  may  be  resorted  to  for  the  purpose  of  ascer- 
taining the  terms  of  agreement.  This  doctrine  is  fully  sustained  in 
Briggs  V.  Partridge,  64  N.  Y.  357,  362,  364,  where  the  authorities 
bearing  on  the  subject  are  cited  and  considered.  (See  also  Story  on 
Agency,  \  160.)^  A  different  rule  prevails  as  to  sealed  instruments;  but 
where  the  contract  is  in  wanting  or  by  parol,  not  under  seal,  in  the  name 
of  the  agent  and  within  his  authority,  the  principal  can  enforce  the 
same  and  is  liable  thereon.  The  contract  for  the  letting  of  the  premises 
in  question  from  year  to  year  was  not  required  to  be  in  writing.  The 
defendant  understood  that  the  agents  were  acting  for  others  and  were 
liable  to  the  principals. 

The  particular  phraseology  used  in  the  lease  describing  the  agents 
"  as  landlords  "  does  not  change  the  rule  or  prevent  its  application  to 

1  The  arguments  are  omitted. 

2  And  see  Brady  v.  Nally  (1896),  151  N.  Y.  25S,  2S2.— Ed. 


LlinVIG   :'.    GILLEvSPIE.  227 

contracts  not  under  seal.  In  fact,  the  counterpart  of  the  lease  not  being 
produced,  and  it  being  no  doubt  in  the  defendant's  possession,  and  it 
not  appearing  in  wliat  manner  it  was  executed  by  the  lessors,  and  the 
proof  showing  that  the  plaintiffs  were  the  landlords  and  entitled  to  the 
rents,  it  was  reasonable  to  assume  that  it  was  executed  by  their  agents 
for  their  benefit  and  on  their  account.  The  cases  cited  by  the  learned 
counsel  for  the  defendant  to  establish  the  doctrine  that  the  lease,  as  it 
was,  could  only  be  enforced  by  the  agents,  do  not  sustain  the  principle 
contended  for.  Most  of  them  relate  to  instruments  under  seal  and  none 
of  them  hold  that  the  principal  can  not  recover  where  the  contract  is 
made  by  the  agent  within  his  authority,  either  written  or  parol,  when 
not  under  seal.i  hidgment  accordingly. 


LUDWIG  r-.  GILLESPIE. 

Court  of  Appeals  of  New  York,  April  19,   1887. 

[105  N.    Y.  653.] 

The  following  is  the  mem.  of  opinion  herein  : 

"  The  action  was  to  recover  $22,251.60,  as  the  price  of  certain  bitumen 
theretofore  sold  and  delivered  by  the  plaintiff  to  the  defendant.  Besides 
a  general  denial,  the  answer  set  up  that  the  bitumen  was  sold  and  deliv- 
ered bj-  the  plaintiff,  not  on  his  own  account, 

"but  as  known  agent  for  the  firm  of  Aries,  Dufour  &  Co.,  his  disclosed  prin- 
cipals under  a  special  contract  in  writing,  and  without  authority  to  receive  the 
proceeds  of  such  sales,  " 

and  upon  this  defence  the  defendant  upon  trial  of  the  issues  before 
a  referee,  asked  a  dismissal  of  the  complaint.  His  request  was  denied 
and  judgment  went  against  him,  both  upon  the  report  of  the  referee 
and  at  the  General  Term. 

"The  principal  point  made  in  his  behalf  upon  this  appeal  is  that  the 
action  was  improperly  brought  by  the  plaintiff  in  his  own  name.  It 
appeared  that  the  contract  was  negotiated  by  one  Clark,  a  broker,  who 
in  that  character  made  and  signed  a  writing  which,  so  far  as  is  material, 
was  in  these  words: 

'New  York,  April  25,  1882. — Sold  for  account  of  Mr.  E.  Ludwig,  Agt.,  to 
Mr.  L.  C.  Gillespie,  four  thousand  (4,000)  cases  Syrian  bitumen.' 

A  time  for  deliver^'  was  specified  and  the  price  declared  'payable 
thirt}'  days  from  each  deliver3^ '  This  contract  was  assented  to  by 
both  parties,  and  the  referee  finds  that  '  there  was  no  proof  that 
the  name  of  Aries,  Dufour  &  Co.  was  disclosed  or  mentioned  as  the 

1  Part  of  the  opinion,  dealing  with  other  points,  is  omitted. 


228  IN    WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 

principal  of  the  plaintiff  in  the  negotiations  for  the  sale,  nor  at  any 
time  before  this  contract  had  been  executed  and  delivered;"  but  he  also 
finds  that  at  the  time  of  making  it  the  '  plaintiff  was  in  fact  the  agent 
of  Aries,  Dufour  &  Co.,  of  Marseilles,  France,  for  the  sale  of  imported 
goods, '  and  that  the  bitumen  was  sold  and  delivered  by  him,  not  on 
his  own  account,  but  for  and  on  account  of  Aries,  Dufour  &  Co.,  and 
as  their  agent. 

"The  evidence  sustains  these  findings,  and  the  case  is  thus  brought 
within  the  well  established  rule  of  law  that  when  a  contract  not  under 
seal  is  made  with  an  agent  in  his  own  name  for  an  undisclosed  principal, 
whether  he  describes  himself  to  be  an  agent  or  not,  either  the  agent  or 
principal  ma}^  sue  upon  it.  Coiisiderant  v.  Brisbane,  22  N.  Y.  389; 
Schaefer  v.  Henkel,  75  N.  Y.  378. 

"  The  defendant  has  received  the  thing  bargained  for  and  a  recover}' 
by  the  plaintiff  and  paj-ment  of  the  judgment  will  be  a  complete  protec- 
tion to  the  defendant  against  an}'  claim  of  the  principal  arising  upon 
the  contract. 

"  The  other  questions  presented  b}-  the  appellant  relate  to  rulings  by 
the  referee  upon  offers  of  evidence,  and  were  properly  held  by  the  Gen- 
eral Term  to  be  without  merit. 

"The  judgment  should  be  affirmed." 

William  Hildreth  Field,  for  appellant. 

M.    IV.  Divine,  for  respondent. 

Danforth,  J.,  reads  for  affirmance. 

All  concur.  Judgment  affirmed. 


MELCHER,    AS   ATTORNEY   AND    AGENT   FOR    THE 
OWNERS,   V.   KREISER. 

Supreme  Court  of  New  York,  Special  Term,  August,  1897. 

[21  Misc.    159.] 

Motion  by  plaintiff  to  strike  out  the  answer  as  sham  and  frivolous, 
and  for  judgment. 

John  S.  Melcher,  for  plaintiff. 

Isaac  Fromtne,  for  defendant. 

Russell,  J. — The  motion  in  this  case  presents  a  novel  question  for 
solution.  The  plaintiff  asks  that  the  answer  be  stricken  out  as  sham 
and  frivolous  and  for  judgment.  The  plaintiff  sues  for  rental  due  at 
the  rate  of  $400  per  month,  upon  the  averment  of  a  lease  in  writing  by 
the  plaintiff  to  the  defendant  and  possession  thereunder  by  the  defend- 
ant. The  answer  denies  the  allegations  of  the  leasing  and  affirmatively 
avers  that  the  plaintiff  is  not  the  real  party  in  interest,  but  merely  an 
attorney  or  agent  for  the  real  parties,  L.  S.  Melcher  and  Mary  Paget. 
The  title  indicates  that  the  plaintiff  is  simply  attorney  and  agent  for 


MELCHER    7'.    K REISER.  229 

the  owners,  and  the  jjlaintiff 's  attorney  submits  the  lease  on  the  motion 
made  "between  John  L.  Melcher,  of  New  York  City,  as  attorney  and 
agent  of  the  owners  of  the  premises  hereinafter  described,  party  of  the 
first  part,  lessor,  and  ir^amnel  Kreiser  of  said  cit3\  lessee,  party  of  the 
second  part.  "     The  lease  is  signed, — 

John  L,  Melcher,  Agt.  and  Atty.  ( L.  S.) 
Samuel  Kreiser,  (L.  S.) 

The  plaintiff's  counsel  argues  that  the  lessee  is  estopped  from  deny- 
ing the  title  of  the  landlord,  and  that  the  persons  for  whom  Melcher  is 
attorne}'^  and  agent  can  not  enforce  the  provisions  of  the  lease,  but  that 
any  action  upon  it  must  be  brought  in  the  name  of  the  lessor  as 
written  in  the  instrument  as  signed,  and,  therefore,  that  the  answer  is 
both  sham  and  frivolous.  He  cites  the  case  of  Schaefer  v.  Henkel,  75 
N.  Y.  37S,  in  which  the  Court  of  Appeals  held,  Rapallo  and  Allen  dis- 
senting, that,  where  it  distinctly-  appeared  that  the  seal  affixed  was  the 
seal  of  the  person  subscribing,  even  though  he  designated  himself  as 
agent,  and  not  the  seal  of  the  principal,  the  agent  is  the  real  party  in 
interest  who  can  maintain  an  action  on  the  agreement.  But  in  that 
case  the  absence  of  proof  that  the  lessee  had  knowledge  that  such 
agent  was  acting  for  the  owners  prevented  the  owners  recovering  upon 
the  instrument. 

He  also  cites  the  case  of  Kiersted  v.  Orange  R.  R.  Co.,  69  N.  Y.  343, 
where  the  Court  of  Appeals  held  that  the  agent  executing  the  lease  as 
lessee  in  his  individual  name  was  alone  liable,  as  the  lease  did  not  pur- 
port to  be  executed  on  behalf  of  the  principal. 

There  is  also  another  case  of  similar  import,  namely,  that  of  Briggs 
V.  Partridge,  64  N.  Y.  357.  It  was  there  held  that  an  executory  con- 
tract under  seal  for  the  purchase  of  lands,  executed  by  the  vendee  in 
his  own  name,  can  not  be  enforced  as  a  simple  contract  of  another  not 
mentioned  in  or  a  party  to  the  instrument,  on  proof  that  the  vendee 
named  had  oral  authority  from  such  other  to  make  the  contract,  and 
did,  in  fact,  act  as  his  agent,  in  the  absence  of  proof  of  the  ratification 
on  the  part  of  the  undisclosed  principal. 

The  general  doctrine,  however,  is  that  a  mere  agent  or  attorney,  not 
having  a  beneficial  interest  in  the  contract,  can  not  maintain  an  action 
in  his  own  name.     Gunn  v.  Catitijie,  10  Johns.  387. 

In  Dykers  v.  Townsend,  24  N.  Y.  57,  the  Court  of  Appeals  allowed  a 
recovers'  upon  a  contract,  necessarily  in  writing  to  comply  with  the 
statute  of  frauds,  by  the  principal  or  real  party  in  interest,  although 
the  contract  did  not  name  or  refer  to  the  existence  of  the  principal, 
and  was  apparently  signed  by  the  agent  as  a  principal. 

In  Miller  v.  Ball,  64  N.  Y.  286,  there  was  an  oral  contract  for  the 
purchase  of  lands  which  was  taken  out  of  the  statute  of  frauds  bj^  acts 
of  improvement  on  the  part  of  the  vendee.  The  contract  itself  was 
made  b}^  the  agent  as  a  principal,  and   no  suggestion  whatever  was 


:i30  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

made  as  to  anj-  one  but  the  apparent  vendee  having  any  interest  what- 
ever in  the  purchase.  Yet  the  Court  of  Appeals  allowed  a  specific  per- 
formance of  this  contract  by  the  undisclosed  principal. 

It  will  thus  be  seen  that  the  only  limitations  upon  the  necessity  of 
bringing  the  action  in  the  name  of  the  real  party  in  interest  are  in 
cases  where  the  agent  makes  the  contract  as  a  principal  and  afiixes  the 
seal  as  principal  ;  even  in  those  cases  it  would  seem  that  the  real  party 
in  interest  ought  to  have  the  right  to  enforce  an  agreement  actually 
made  for  his  benefit,  and  under  which  he  has  been  deprived  of  the  use 
of  his  own  property,  and  that  he  could  terminate  the  agency  when  he 
saw  fit  in  case  of  untrustworthiness  of  the  agent,  adopting  the  act  of 
that  agent  for  the  enforcement  of  that  contract  itself  and  for  his  own 
protection. 

However  this  may  be,  in  the  present  case  the  lessor  in  the  lease  itself 
describes  himself  as  attorney  and  agent  for  the  owners,  signs  the  lease 
as  agent  and  attorney-,  showing  that  he  was  not  covenanting  in  his 
own  behalf,  but  professedly  for  others;  and  I  am  referred  to  no  case 
which  allows  him  upon  such  a  written  instrument  to  bring  an  action, 
not  in  his  own  name,  but  as  attorney  and  agent  for  the  owners,  as 
plaintiff",  and  recover  the  sums  provided  to  be  paid  by  the  part)^  of  the 
second  part. 

The  answer  clearlj'  can  not  be  stricken  out  as  sham  and  frivolous 
independently  of  any  consideration  of  the  denial  of  the  execution  of 
any  such  writing,  which  ordinaril}-  allows  a  trial  of  the  question  in 
issue  before  a  jur\-.    '  Motion  denied,  with  $io  costs.^ 

y-  ^  MELCHER.  AS  ATTORNEY  AND  AGENT  FOR  THE 

OWNERS,  V.  KREISER. 

\       t~     Supreme  Court  of  New  York,    Appellate  Division, 


V*  ^  V     a'  April  Term,   1898. 


[28  App.   Div.  362.] 


Appeal  by  the  plaintiff",  John  L.  Melcher,  as  attorney  and  agent  for 
the  owners,  from  a  judgment  of  the  Supreme  Court  in  favor  of  the 
defendant,  entered  in  the  oflB.ce  of  the  clerk  of  the  county  of  New  York, 
on  the  12th  day  of  January-,  1898,  upon  the  dismissal  of  the  complaint 
b}^  direction  of  the  court  after  a  trial  at  the  New  York  Trial  Term. 

John  S.  Melcher,  for  the  appellant. 

Emanuel  J .  Myers,  for  the  respondent. 

RuMSEY,  J. — The  action  was  brought  upon  a  lease  under  seal  made 
between  John  L.  Melcher,  ' '  as  attorney'  and  agent  for  the  owners  of  the 

1  Affirmed  in  Appellate  Division  of  the  Supreme  Court,  without  opinion,  November  Term, 
1897,  22  App.  Div.  629.  But  see  Melcher  v.  Kaiser  (1S9S),  28  App.  Div.  362,  given  in  the  text, 
infra.— Ed. 


MIvLCHER   V.    KREISEP  231 

premises  hereinafter  aescribed,  party  of  the  first  part,  lessor,  and  Sam- 
uel Kreiser,  of  the  said  city,  lessee,  party  of  the  second  part. ' '  The  paper 
was  signed  by  John  L.  Melcher,  agent  and  attorney.  It  provided  for 
renting  certain  property  for  two  months,  from  the  nineteenth  of  Novem- 
ber to  the  nineteenth  of  December,  at  $400  a  month.  The  complaint 
contained  an  allegation  that  the  lease  was  continued  from  month  to 
month,  subject  to  all  the  terms  and  conditions  of  the  lease,  and  that  the 
defendant  continued  in  possession  of  the  premises,  and  was  in  posses- 
sion at  the  time  of  the  commencement  of  the  action.  It  is  alleged  that 
the  rent  due  on  the  19th  of  April,  1897,  and  the  19th  of  May,  1897,  was 
unpaid,  except  the  sum  of  $300,  and  that  there  was  due  to  the  plaintiff, 
by  reason  of  the  unpaid  rent  for  these  two  months,  the  sum  of  $500, 
for  which  judgment  was  demanded.  The  answer,  omitting  the  formal 
parts,  is  as  follows  : 

The  defendant  "denies  the  allegation  contained  in  paragraph  first  of  said 
complaint,  and  in  folio  2  thereof,  and  further  alleges  that  the  plaintiff  herein  is 
not  the  real  party  in  interest,  but  is  merely  the  attorney  or  agent  for  the  owners 
of  the  premises  set  forth  in  the  complaint  herein,  and  that  the  real  parties  in 
interest  are,  as  defendant  is  informed  and  believes,  Ellen  S.  Melcher  and  Mary 
Paget. " 

On  these  pleadings  the  case  came  to  trial.  The  plaintiff  proved  the 
execution  of  the  lease,  that  the  defendant  went  into  possession  under  it 
and  continued  in  possession,  and  then  rested.  Thereupon  the  court 
dismissed  the  complaint  on  the  ground  that  the  action  was  not  brought 
by  the  real  party  in  interest,  and  that  there  was  no  rent  due  and  unpaid. 
From  the  judgment  entered  upon  that  order  of  dismissal  this  appeal  is 
taken.  That  the  rent  is  due  and  unpaid  is  admitted  b}-  the  failure  to 
deny  it  in  the  answer.  Indeed,  the  answer  contains  no  denial  whatever. 
The  statement  that  it  denies  ' '  the  allegation  contained  in  paragraphs 
first  of  said  complaint,  and  in  folio  2  thereof, "  amounts  to  nothing.  It 
is  utterly  impossible  to  ascertain  from  an  examination  of  the  papers  pre- 
sented to  us  what  portion  of  the  complaint  is  in  folio  2,  paragraph  ist,  be- 
cause there  is  no  such  folio  in  the  complaint.  Such  a  pleading  is  entirely 
unwarranted  and  ineffectual,  and  is  entitled  to  no  weight  whatever  as  a 
denial  of  anything.  In  the  trial  of  this  case  the  plaintiff  might  well 
have  stood  upon  the  allegations  of  the  complaint,  insisting  that  no 
part  of  it  was  denied  by  the  answer.  But  even  if  paragraph  ist  can  be 
deemed  to  have  been  denied,  the  allegation  that  the  rent  w^as  unpaid 
was  contained  in  paragraph  3rd,  as  to  which  no  mention  was  made, 
and,  therefore,  upon  the  record,  there  is  no  doubt  that  $500  of  rent  was 
unpaid,  as  the  plaintiff  claimed.  The  making  of  the  lease,  and  the 
fact  that  the  defendant  went  into  possession  under  it,  and  that  the 
possession  was  continued  by  agreement  between  the  parties  from  month 
to  month,  and  that  the  defendant  was  in  possession  at  the  time  of  the 
commencement  of  the  action,  were  all  established  by  the  evidence,  as 
well  as  admitted  by  the  pleadings. 


232  IN   WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

Upon  that  state  of  undisputed  facts  the  plaintiff  was  entitled  to  recover 

in  this  action,  for  various  reasons.     In  the  first  place,  as  it  appeared 

that  the  defendant  entered  into  possession  of  the  premises  by  virtue  of 

his  lease  from  the  plaintiff,  and   remained  in  possession  under  that 

lease,  he  was  estopped  from  denying  the  existence  of  the  relation  of 

landlord  and  tenant  between  himself  and  Melcher  as  attorney,  and  his 

-       liability  to  pay  rent  to  Melcher  as  he  had  agreed  to  pay  in  his  lease. 

.    '   /^'       Tilyou  V.  Reynolds,   io8  N.  Y.    558.      This  contract  being  under  seal, 

J^         ,    and  having  been  madeJav  MHrhfr   personally,    although    describing 

■  ~him  by  the  word  'Hgent, ' '  :Melcher  was,  the  only  party  of  the  first-part 

>  T^TEii'lease   andJie^Tiid  not  those  persons  for  whom  he  migM  have 

been  agent,  was  entitled  to  sue  upon  it.i     If  it  can  be  inferred  from  this 

I  paper  that  Melcher  made  this  contract  for  the  benefit  of  other  persons, 

still  he  is  a  person  with  whom  or  in  whose  name  a  contract  is  made  for 

the  benefit  of  another,  and,  therefore,  is  a  trustee  of  an  express  trust, 

I  within  section  449  of  the  Code  of  Civil  Procedure,  and  by  the  provision 

'  of  that  section  is  entitled  to  maintain  this  action.     Considerant  v.  Bris- 

'   bane,  22  N.  Y.  389.       For  all  these  reasons  he  was  entitled  to  sue  and 

should  have  recovered  the  judgment  in  the  action. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with  costs 
to  the  appellant  to  abide  the  event. 

Van  Brunt,  P.  J.,  Barrett,  Patterson,  and  O'Brien,  JJ.,    con- 
curred. 
Judgment  reversed,  new  trial  ordered,  costs  to  appellant  to  abide  event. 

iSchaefer  v.  Henkel,  75  N.  Y.  378;  Albany  &  Kens.  Co.  v.  I<undberg,  121  U.  S.  451. 


I,AWRENCE   V.    FOX. 


233 


11.      WHEN   TIIH     PARTY    WITH    WHOM     THE     CONTRACT     IS   MADE     CON- 
TRACTS  OSTENSIBLY  FOR  THE  BENEFIT  Ol-  A  THIRD  PERSON, 
STRANGER   TO   THE   CONTRACT. 

/.      T/u-  affinnative  application  of  t lie  ride  in  general. 

LAWRENXE    v.     FOX.  .^^ 

Court  of  Appeai^  of  New  York,  December,  1859. 
[  20  N  Y.  268.  ] 

Appeal  from  the  vStiperior  Court  of  the  city  of  Buffalo. 

On  the  trial  before  Mr.  Justice  ]Masten.  it  appeared,  by  the  evidence 
of  a  bystander,  that  one  Holly,  in  November,  1S57,  at  the  request  of  the 
defendant,  loaned  and  advanced  to  him  $300,  stating  at  the  time  that  he 
owed  that  sum  to  the  plaintiff  for  money  borrowed  of  him,  and  had 
agreed  to  pay  it  to  him  the  then  next  day;  that  the  defendant  in  consid- 
eration thereof,  at  the  time  of  receiving  the  money,  promised  to  pay  it 
to  the  plaintiff  the  then  next  day 

Upon  this  State  of  facts,  the  defendant  moved  for  a  nonsuit,  upon 
three  several  grounds,  viz.:  That  there  was  no  proof  tending  to  show 
that  Holly  was  indebted  to  the  plaintiff;  that  the  agreement  by  the 
defendant  with  Holly  to  pay  the  plaintiff  was  void  for  want  of  consid- 
eration; and  that  there  was  no  privity  between  the  plaintiff  and  the 
defendant.  The  court  overruled  the  motion,  and  counsel  for  the  de- 
fendant excepted. 

The  cause  was  then  submitted  to  the  jury,  and  they  found  a  verdict 
for  the  plaintiff  for  the  amount  of  the  loan  and  interest,  $344.66,  upon 
which  judgment  was  entered.  The  defendant  appealed  to  the  Superior 
Court,  at  general  term,  where  the  judgment  was  affirmed;  the  defend- 
ant then  appealed  to  this  court. 

/.  S.   Torrance,  for  the  appellant. 

E.  P.  Chapin,  for  the  plaintiff. 

H.  Gray,  J. — The  first  objection  raised  on  the  trial  amounts  to  this  : 
That  the  evidence  of  the  person  present,  who  heard  the  declarations  of 
Holly  giving  directions  as  to  the  payment  of  the  money  he  was  then 
advancing  to  the  defendant,  was  mere  hearsay  and  therefore  not  com- 
petent. Had  the  plaintiff  sued  Holly  for  that  sum  of  money  no 
objection  to  the  competency  of  this  evidence  would  have  been  thought 
of;  and  if  the  defendant  had  performed  his  promise  by  paying  the  sum 
loaned  to  him  to  the  plaintiff,  and  Holly  had  afterward  sued  him  for  its 
recovery,  and  this  evidence  had  been  offered  by  the  defendant,  it  would 
doubtless  have  been  received  without  an  objection  from  any  source.     All 


23-t  IN   WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 

the  defendant  had  the  right  to  demand  in  this  case  was  evidence  whicii, 
as  between  Holly  and  the  plaintiff,  was  competent  to  establish  the 
relation  between  them  of  debtor  and  creditor.  For  that  purpose  the 
evidence  was  clearl)-  competent;  it  covered  the  whole  ground  and 
warranted  the  verdict  of  the  jury. 

But  it  is  claimed  that  notwithstanding  this  promise  was  established 
by  competent  evidence,  it  was  void  for  the  want  of  consideration.  It  is 
now  more  than  a  quarter  of  a  century  since  it  was  settled  by  the  Su- 
preme Court  of  this  State — in  an  able  and  painstaking  opinion  b}'  the 
late  Chief  Justice  Savage,  in  which  the  authorities  were  fulh'  examined 
and  carefully  analysed — that  a  promise  in  all  material  respects  like  the 
one  under  consideration  was  valid  ;  and  the  judgment  of  that  court  was 
unanimoush'  afiirmed  by  the  Court  for  the  Correction  of  Errors.  Farley 
V.  Cleaveland,  4  Cow.,  432  ;  same  case  in  error,  9  id.  639.  In  that  case 
one  Moon  owed  Farley  and  sold  to  Cleaveland  a  quantity  of  ha}^  in  con- 
sideration of  which  Cleaveland  promised  to  pay  Moon's  debt  to  Farley; 
and  the  decision  in  favor  of  Farley's  right  to  recover  was  placed  upon 
the  ground  that  the  hay  received  by  Cleaveland  from  Moon  was  a  valid 
consideration  for  Cleaveland 's  promise  to  pa}'  Farley,  and  that  the 
subsisting  liability  of  Moon  to  pay  Farley  was  no  objection  to  the 
recovery.  The  fact  that  the  money  advanced  by  Holly  to  the  de- 
fendant was  a  loan  to  him  for  a  day,  and  that  it  thereby  became  the 
property  of  the  defendant,  seemed  to  impress  the  defendant's  counsel 
with  the  idea  that  because  the  defendant's  promise  was  not  a  trust 
fund  placed  by  the  plaintiflf  in  the  defendant's  hands,  out  of  which  he 
was  to  realize  money  as  from  the  sale  of  a  chattel  or  the  collection  of  a 
debt,  the  promise  although  made  for  the  benefit  of  the  plaintiff  could 
not  enure  to  his  benefit.  The  hay  which  Cleaveland  delivered  to  iSIoon 
was  not  to  be  paid  to  Farley,  but  the  debt  incurred  by  Cleaveland  for 
the  purchase  of  hay,  like  the  debt  incurred  b^'  the  defendant  for  money 
borrowed,  was  what  was  to  be  paid.  That  case  has  often  been  referred 
to  by  the  courts  of  this  State,  and  has  never  been  doubted  as  sound 
authority  for  the  principle  upheld  by  it. '  Bar^ker  v.  Biiklin  [1846],  2 
Denio,  45;  Hudson  Canal  Cojnpany  v.  The  Westchester  Bank  [1847],  4  '^• 
97.  It  puts  to  rest  the  objection  that  the  defendant's  promise  was  void 
for  want  of  consideration. 

The  report  of  that  case  shows  that  the  promise  was  not  only  made  to 
Moon  but  to  the  plaintiff  Farley.  In  this  case  the  promise  was  made 
to  Holly  and  not  expressly  to  the  plaintiff;  and  this  difference  between 
the  two  cases  presents  the  question,  raised  by  the  defendant's  objection, 
as  to  the  want  of  privity  between  the  plaintiff  and  the  defendant. 

As  early  as  1806  it  was  announced  by  the  Supreme  Court  of  this 
State,  upon  what  was  then  regarded  as  the  settled  law  of  England, 
' '  that  where  one  person  makes  a  promise  to  another  for  the  benefit  of  a 
third  person,  that  third  person  may  maintain  an  action  upon  it." 
Schenierhorn  v.    Vanderheyden    [1806],    i  John.  R.,  140,  has  often  been 


LAWRENCE    r.    FOX.  235 

re-asserted  by  our  courts  and  never  departed  from.  The  case  of  Seaman 
V.  White, ^  has  occasionally  been  referred  to  (but  not  by  the  courts)  not 
only  as  having  some  bearing  upon  the  question  now  under  consideration, 
but  as  involving  in  doubt  the  soundness  of  the  proposition  stated  in 
Schemerhom  v.  Vanderheyden.  In  that  case  one  Hill,  on  the  17th  of 
August,  1835,  made  his  note  and  procured  it  to  be  indorsed  by  Seaman 
and  discounted  by  the  Phoenix  Bank.  Before  the  note  matured  and 
while  it  was  owned  by  the  Phoenix  Bank,  Hill  placed  in  the  hands  of 
the  defendant,  Whitney,  his  draft  accepted  by  a  third  party,  which  the 
defendant  indorsed,  and  on  the  7th  of  October,  1835,  got  discounted  and 
placed  the  avails  in  the  hands  of  an  agent  with  which  to  take  up  Hill's 
note ;  the  note  became  due,  Whitney  withdrew  the  avails  of  the  draft 
from  the  hands  of  his  agent  and  appropriated  it  to  a  debt  due  him 
from  Hill,  and  Seaman  paid  the  note  indorsed  by  him  and  brought 
his  suit  against  Whitney.  Upon  this  state  of  facts  appearing,  it  was 
held  that  Seaman  could  not  recover  :  first,  for  the  reason  that  no  prom- 
ise had  been  made  by  Whitney  to  pay  ;  and,  second,  if  a  promise  could 
be  implied  from  the  facts  that  Hill 's  accepted  draft,  with  which  to  raise 
the  means  to  pay  the  note,  had  been  placed  by  Hill  in  the  hands  of 
Whitney,  the  promise  would  not  be  to  Seaman,  but  to  the  Phoenix 
Bank,  who  then  oWned  the  note  ;  although,  in  the  course  of  the  opinion 
of  the  court,  it  was  stated  that,  in  all  cases,  the  principle  of  which  v^as 
sought  to  be  applied  to  that  case,  the  fund  had  been  appropriated  by  an 
express  undertaking  of  the  defendant  with  the  creditor.  But  before 
concluding  the  opinion  of  the  court  in  this  case,  the  learned  judge  who 
delivered  it  conceded  that  an  undertaking  to  pay  the  creditor  may  be 
implied  from  an  arrangement  to  that  effect  between  the  defendant  and 
the  debtor. 

This  question  was  subsequently,  and  in  a  case  quite  recent,  again 
the  subject  of  consideration  by  the  Supreme  Court,  when  it  was  held, 
that  in  declaring  upon  a  promise,  made  to  the  debtor  by  a  third  party 
to  pay  the  creditor  of  the  debtor,  founded  upon  a  consideration  advanced 
by  the  debtor,  it  was  unnecessary  to  aver  a  promise  to  the  creditor;  for 
the  reason  that  upon  proof  of  a  promise  made  to  the  debtor  to  pay  the 
creditor  a  promise  to  the  creditor  would  be  implied.  And  in  support  of 
this  proposition,  in  no  respect  distinguishable  from  the  one  now  under 
consideration,  the  case  of  Schemerhom  v.  Vanderheyde7i,  with  many 
intermediate  cases  in  our  courts,  were  cited,  in  which  the  doctrine 
of  that  case  was  not  only  approved  but  affirmed.  The  Delaware  and 
Hndson  Canal  Company  v.  The  Westchester  Cotinty  Bank  [1847],  \ 
Denio,  97. 

The  same  principle  is  adjudged  in  several  cases  in  Massachusetts.  I 
will  refer  to  but  few  of  them.  Arnold  v.  Lyman  [182 1],  17  Mass.,  400; 
Hallv.  Marston  [1822],  id.,  575;  Brewer  v.  Dyer  [1851],  7  Cush.,  337, 

1  Reported,  under  title  Seaman  v.   IVhitney,    24  Wend.  260  [1S40].— £rf. 


236  IN   WHOSE   NAME   THE   ACTION   SHOULD   BE    BROUGHT. 

340.  In  Hall  V.  Marston,  the  court  say:  "  It  seems  to  have  been  well 
settled  that  if  A  promises  B  for  a  valuable  consideration  to  paj-  C,  the 
latter  may  maintain  assumpsit  for  the  money;"  and  in  Brewer,  v.  Dyer, 
the  recovery  was  upheld,  as  the  court  said,  ' '  upon  the  principle  of  law 
long  recognized  and  clearly  established,  that  when  one  person,  for  a 
valuable  consideration,  engages  with  another,  by  a  simple  contract, 
to  do  some  act  for  the  benefit  of  a  third,  the  latter,  who  would  eujjoy 
the  benefit  of  the  act,  may  maintain  an  action  for  the  breach  of  such 
engagement;  that  it  does  not  rest  upon  the  ground  of  any  actual  or 
supposed  relationship  between  the  parties,  as  some  of  the  earlier  cases 
would  seem  to  indicate,  but  upon  the  broader  and  more  satisfactory 
basis,  that  the  law  operating  on  the  act  of  the  parties  creates  the  duty, 
establishes  a  privity,  and  implies  the  promise  and  obligation  on  which 
the  action  is  founded." 

There  is  a  more  recent  case  decided  by  the  same  court,  to  which  the 
defendant  has  referred  and  claims  that  it  at  least  impairs  the  force  of 
the  former  cases  as  authority.  It  is  the  case  of  Mellen  v.  Whipple 
[1854],  I  Gray,  317.  In  that  case  one  Rollins  made  his  note  for  $500, 
payable  to  Ellis  and  Ma3'o,  or  order,  and  to  sectire  its  payment  mort- 
gaged to  the  payees  a  certain  lot  of  ground,  and  then  sold  and  conveyed 
the  mortgaged  premises  to  the  defendant,  by  deed  in  which  it  was 
stated  that  the 

"granted  premises  were  subject  to  a  mortgage  for  $500,  which  mortgage,  with 
the  note  for  which  it  was  gi\  en,  the  said  Whipple  is  to  assume  and  cancel. " 

The  deed  thus  made  was  accepted  by  Whipple,  the  mortgage  was  after- 
wards duly  assigned,  and  the  note  indorsed  by  Ellis  and  Maj-o  to  the 
plaintiff's  intestate.  After  Whipple  received  the  deed  he  paid  to  the 
mortgagees  and  their  assigns  the  interest  upon  the  mortgage  and  note 
for  a  time,  and  upon  refusing  to  continue  his  payments  was  sued  by  the 
plaintiff  as  administratrix  of  the  assignee  of  the  mortgage  and  note. 
The  court  held  that  the  stipulation  in  the  deed  that  Whipple  should 
pay  the  mortgage  and  note  was  a  matter  exclusively  between  the 
two  parties  to  the  deed  ;  that  the  sale  by  Rollins  of  the  equity  of  the 
redemption  did  not  les.sen  the  plaintiff's  .security;  and  that  as  nothing 
had  been  put  into  the  defendant's  hand  for  the  purpose  of  meeting 
the  plaintiff's  claim  on  Rollins,  there  was  no  consideration  to  support 
an  express  promise,  much  less  an  implied  one,  that  Whipple  should  pay 
Mellen  the  amount  of  the  note.  This  is  all  that  was  decided  in  that 
case,  and  the  substance  of  the  reasons  assigned  for  the  decision ;  and 
whether  the  case  was  rightly  disposed  of  or  not,  it  has  not  in  its  facts 
any  analogy  to  the  ca.se  before  us,  nor  do  the  reasons  assigned  for  the 
decision  bear  in  any  degree  upon  the  question  we  are  now  considering.' 
But  it  is  urged  that  because  the  defendant  was  not  in  any  sense  a 
trustee  of  the  property  of  Holly  for  the  benefit  of  the  plaintiff,  the  law 

I  See  the  later  Massachusetts  cases,  given  in  note  at  the  end  of  Laiurence  v.  Fox.— Ed. 


LAWRENCE    V.    FOX.  237 

will  not  imply  a  promise.  T^  a^ree  thq^  many  n{  the  rases  where  a 
promise  was  implied  were  cases  of  trusts,  created  forJ;he  heripfit  nf  tlip 
pfomisor.  The  case  of  Fclton  v.  Dickinson,  lo  Mass.  [1813],  287,  290, 
and  others  that  might  be  cited,  are  of  that  class  ;  but  concede  them  all 
to  have  been  cases  of  trusts,  and  it  proves  nothing  against  the  applica- 
tion of  the  rule  to  this  case!  The  duty  of  the  trustee  to  pay  the  c est  ids 
'queirusL  accoramg  to  the  terms  of  the  trust,  implies  his  promise  to  the 
latter  to  do  so.  In  this  case,  the  defendant  upon  ample  consideration 
received  from  Holh",  promised  Holly  to  pay  his  debt  to  the  plaintiif; 
the  consideration  received  and  the  promise  to  Holly  made  it  as  plainly' 
his  duty  to  pay  the  plaintiff  as  if  the  money  had  been  remitted  to  him 
for  that  purpose,  and  as  well  implied  a  promise  to  do  so  as  if  he  had 
been  made  a  trustee  of  property  to  be  converted  into  cash  with  which 
to  paj'.  The  fact  that  a  breach  of  the  duty  imposed  in  the  one  case  may 
be  visited,  and  justly,  with  more  serious  consequences  than  in  the  other, 
by  no  means  disproves  the  payment  to  be  a  duty  in  both.  The  princj- 
ple  illustrated  by  the  example  so  frequently  quoted  (which  concisely 
states  the  case  in  hand)  "  that  a  promise  made  to  one  for  the  benefit  of 
another,  he  for  whose  benefit  it  is  made  may  bring  an  action  for  its 
breach,"  has  been  applied  to  trust  cases,  not  because  it  was  exclusively 
applicable  to  those  cases,  but  because  it  was  a  principle  of  law,  and  as 
such  applicable  to  those  cases. 

It  was  also  insisted  that  Holly  could  have  discharged  the  defendant 
from  his  promise,  though  it  was  intended  by  both  parties  for  the  benefit 
of  the  plaintiff,  and  therefore  the  plaintiff  was  not  entitled  to  maintain 
this  suit  for  the  recover}^  of  a  demand  over  which  he  had  no  control. 
It  is  enough  that  the  plaintiff  did  not  release  the  defendant  from  his 
promise  and  whether  he  could  or  not  is  a  question  not  now  necessarily 
involved;  but  if  it  was,  I  think  it  would  be  found  difficult  to  maintain 
the  right  of  Holly  to  discharge  a  judgment  recovered  by  the  plaintiff 
upon  confession  or  otherwise,  for  the  breach  of  the  defendant's  promise; 
and  if  he  could  not,  how  could  he  discharge  the  suit  before  judgment, 
or  the  promise  before  suit,  made  as  it  was  for  the  plaintiff's  benefit  and 
in  accordance  with  legal  presumption  accepted  by  him  {Berly  v.  Taylor, 
[1843],  5  Hill,  577 — 584,  et  seq.),  until  his  dissent  was  shown.  The 
cases  cited,  and  especially  that  of  Farley  v.  Cleavelatid,  establish  the 
validity  of  a  parol  promise;  it  stands  then  upon  the  footing  of  a  written 
one.  Suppose  the  defendant  had  given  his  note  in  which,  for  value 
received  of  Holly,  he  had  promised  to  pay  the  plaintiff  and  the  plain- 
tiff had  accepted  the  promise,  retaining  Holly's  liability.  Very  clearU' 
Holly  could  not  have  discharged  that  promise,  be  the  right  to  release 
the  defendant  as  it  may.  No  one  can  doubt  that  he  owes  the  sum  of 
money  demanded  of  him,  or  that  in  accordance  with  his  promise  it  was 
his  duty  to  have  paid  it  to  the  plaintiff;  nor  can  it  be  doubted  that 
whatever  may  be  the  diversity  of  opinion  elsewhere,  the  adjudications 
in  this  State,  from  a  verj'  earh-  period,  approved  b}^  experience,  have 


I 


238 


IN    WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 


S 


^. 


established  the  defendant's  liability;  if,  therefore,  it  could  be  shown 
that  a  more  strict  and  technically  accurate  application  of  the  rules 
applied,  would  lead  to  a  different  result  (which  I  by  no  means  concede), 
the  effort  should  not  be  made  in  the  face  of  manifest  justice. 

The  judgment  should  be  aflarmed. 

Johnson,  Ch.  J.,  Denio,  Selden,  Allen,  and  Strong,  JJ.,  con- 
curred. Johnson,  Ch.  J.,  and  Denio.  T.,  were  of  opinion_tliaJ— tlie 
tiromisewa'^  t'^  T7p  rpo-arded  as  made  to  the  plaintiff^throughthen_iedium 
of  his  agent,  whose  action  he  could  ratify  when'it  came  to  his  knowl- 
edge,  though  taken  without  his  being  privy  thereto. 

"  CoMSTOCK  and  Grover,  JJ.,  dissented. ^ 

Judgment  affirDiedr 

1  "The  plaintiff,"  said  Com.stock,  J.,  in  his  dissenting  opinion,  "  had  nothing  to  do  with 
the  promise  on  which  he  brought  this  action.  It  was  not  made  to  him,  nor  did  the  consid- 
eration proceed  from  him.  If  he  can  maintain  the  suit,  it  is  because  an  anomaly  has  found 
its  way  into  the  law  on  this  subject.  In  general,  there  must  be  privity  of  contract.  The 
party  who  sues  upon  a  promise  must  be  the  promisee,  or  he  must  have  some  legal  interest 
in  the  undertaking.  In  this  case,  it  is  plai.i  that  Holly,  who  loaned  the  money  to  the 
defendant,  and  to  whom  the  promise  in  question  was  made,  could  at  any  time  have  claimed 
that  it  should  be  performed  to  himself  personally.  He  had  lent  the  money  to  the  defendant, 
and  at  the  same  time  directed  the  latter  to  pay  the  sum  to  the  plaintiff.  This  direction  he 
could  countermand,  and  if  he  had  don-  so  manifestly  the  defendant's  promise  to  pay 
according  to  the  direction  would  have  cea.sed  to  exist.  The  plaintiff  would  receive  a  benefit 
by  a  complete  execution  of  the  arrangement,  but  the  arrangement  itself  was  belween  other 
parties,  and  was  under  their  exclusive  control.  If  the  defendant  had  paid  the  money  to 
Holly,  his  debt  would  have  been  discharged  thereby.  So  Holly  might  have  released  the 
demand  or  assigned  it  to  another  person,  or  the  par  ies  might  have  annulled  the  promise 
now  in  question,  and  designated  some  other  creditor  of  Holly  as  the  party  to  whom  the 
money  should  be  paid.  It  has  never  been  claimed  that  in  a  case  thus  situated,  the  right  of 
a  third  person  to  sue  on  a  promise  rested  on  any  sound  principle  of  law.  We  are  to  inqui:  e 
whether  the  rule  has  been  so  established  by  positive  authority." 

After  reviewing  a  considerable  number  of  cases,  English  and  American,  Judge  Comstock 
adopted  the  opinion  of  Metcalf,  J.,  in  Mclleu  v.  Whipple  (1S54),  i  Gray,  317,  "that  the  cases 
which  had  been  supposed  to  favor  the  action  belonged  to  exceptional  classes,  none  of 
which  embraced  the  pure  and  simple  attempt  by  onepenson  to  enforce  a  promi.se  made  to 
another  from  whom  the  consideration  wholly  proceeded." 

2  CASKS    3-OR    AND    AGAINST   THE   GENERAL    DOCTRINE    OF    LAWRENCE    :■.   FOX. 

Accord,  with  the  majority  ruling:  Mason  v.  Hail  (1857),  30  Ala.  599.  [A.  hires  a  slave  to 
B.  foFa  year  for  I155.  Afterwards  within  the  year,  B.  hires  the  slave  to  C  who  promises  B. 
that  he  (C.)  will  pay  A.  $150  of  the  |i55-]  Sanders  v.  Clason  (1S6S),  13  Minn.  379.  [A  firm 
being  indebted  to  B.  and  various  other  persons,  sold  and  delivered  to  C.  all  the  firm's  stock 
in  trade.  In  consideration  thereof,  C.  agreed  with  the  firm  to  pay  certain  of  their  debts, 
among  them  the  debt  due  B.  "  The  question  is,  whether  the  plaintiff  (B.)  can  avail  himself 
of  this  promise  by  maintaining  an  action  upon  it  in  his  own  name.  If  he  can  the  other 
averments,  as  to  the  promi.se  being  directly  to  him,  will  be  mere  surplusage."]  Meyer  v. 
Lowell  (1S69),  44  Mo.  328.  Morgan  v.  Overman  Silver  Mining  Co.  (1S69),  37  Cal.  534.  IVhite 
V.  Hunt  (1870),  64  N.  C.  496;  but  see  Woodcock  v.  Bostic  (1S96),  118  N.  C.  822,  827.  Johnsqjij^ 
Knapp  (1873),  36  Iowa,  616.  [A.  sold  a  mare  to  B.  who  agreed  wit'i  A.,  as  part  of  the  contract, 
to  pay  to  C.  f30  which  A.  owed  to  C.  for  the  services  of  a  stallion  if  the  mare  proved  with 
foal.]  Jordan  v.  While  (1S73),  20  Minn.  91.  [A.  conveyed  a  40  acre  tract  to  B.  (the  plaintiff). 
Afterwards,  before  B.'s  deed  was  recorded.  A.,  without  B.'s  knowledge,  mortgaged  this  tract 
and  the  adjoining  120  acres  to  C.  On  foreclosure,  C.  bought  in  the  160  acres.  Afterwards, 
before  the  time  for  redemption  had  expired.  A.,  by  warranty  deed,  conveyed  all  but  the  40 
acres  to  D.  (the  defendant),  who  in  consideration  thereof,  agreed  with  A.  to  pay  off  the 
lien  created  by  the  mortgage  to  C.  on  the  40  acres  conveyed  to  A.  D.  .suffered  the  redemption 
period  to  expire,  and  the  title  of  the  160  acres  to  become  absolute  in  C;  but  aft  rwards  D. 
acquired  from  C.  the  legal  title  to  the  160  acres.]   Rogers  v.  Gosnell  (1875),  58  Mo.  5S9.    Ca;'^9 


LAWRENCE    2'.    FOX.  239 

7 .  Zcublin  (1879),  6S  Ind.  436.  Follansbee  v.  Johnson  (iSSi),  28  Minn.  311.  Slariha  v.  Green- 
■wood  (iSSi),  28  Minn.  521.  Smith  v.  Flack  (1S83),  95  Ind.  116.  Hecht  &  Imboden  v.  Cattghron 
(1S85),  46  Ark.  132.  Shamp  v.  Meyer  (1886),  20  Neb.  223.  Johannes  v.  Phenix  Ins.  Co.  (1SS6), 
66  Wis.  50.  [The  plaintiff  was  a  policy  holder  in  a  fire  insurance  companj-  whose  risks  had 
been  reinsured  by  the  defendant.]  Kaufman  v.  U.  S.  National  Bank  (i8gi),  31  Neb.  667. 
Stevens  v.  Flannagan  (1S91),  131  Ind.  £22^29:  "Before  the  adoption  of  the  code,  when  law 
~an'd  equity  were  administered  by  .separate  tribunals,  privity  of  contract  was  essential  to  the 
maintenance  of  an  action  at  law,  but  in  equity  a  promise  of  one  person  to  another  for  the 
benefit  of  a  third  could  be  enforced  by  the  latter  in  his  own  name.  Under  our  present 
practice  the  right  of  the  third  person  to  maintain  his  action  in  his  own  name  has  been 
uniformly  recognized.  Carn.ghan  v.  Tousey,  93  Ind.  561,  with  authorities  there  cited; 
Leake  v^all^_u£iJXi£L.2iA,  and  many  other  cases.  .  .  .  The  law  recognizes  the  right  of  the 
beneficiaries  to  demand  performance  without  the  formality  of  any  delivery  of  the  contract 
to  them.  Ill  equity  they  are  its  holders  without  that  formality,  and,  as  such,  they  are 
also  possessed  of  the  equitable  right  to  have  the  vendor's  lien  declared  and  enforced.'' — 
/V-r  McBride,  J.  Davis  V.  Xational  Bank  0/  Cotnmerce  (iS<)^),  45  Neb.  5S9:  When  one  has 
received  a  conveyance  of  certain  property  in  consideration  of  which  he  absolutely  agrees 
to  pay  a  certain  debt  of  his  grantor,  it  is  no  defence  to  a  suit  brought  by  this  creditor  that 
he  has  already  sued  the  grantor,  and  issued  an  attachment  against  the  property  conveyed 
as  being  still  the  property  of  the  grantor. 

Contra  :  Exchange  Bank  v.  Rice  (1871),  107  Mass.  37  :  "  The  general  rule  of  law  is,  that  a 
person  who  is  not  a  partj'  to  a  simple  contract,  and  from  w^hom  no  consideration  moves, 
can  not  sue  on  the  contract,  and  consequently,  that  a  promise  made  by  one  person  to  another 
for  the  benefit  of  a  third  person  who  is  a  stranger  to  the  consideration,  will  not  support 
an  action  by  the  latter.  And  the  recent  decisions  in  this  Commonwealth  and  in  England 
have  tended  to  uphold  the  rule  and  to  narrow  the  exceptions  to  it." — Per  Gray,  J.  (p.  41). 
Morrill  v.  Lane  (1S83),  136  Mass.  93  :  "  It  is  well  settled  in  this  Commonwealth  that  a  prom- 
i.se  made  by  A.  to  B.  [who  has  assigned  certain  goods  to  A.  to  pay  the  amount  owed  by  B.  to 
his  employees  for  labor  on  the  goods]  that  A.  will  pay  unspecified  amounts  of  money  to 
various  persons  not  named,  but  described  generally  as  of  a  certain  class,  will  not  support 
an  action  by  one  of  those  persons  against  A.  .  .  .  This  is  also  the  law  of  England.  Pollock 
on  Contracts  (3rd  ed.)  203 — 207.  This  case  does  not  fall  within  the  decision  in  Frost  v.  Gage 
(1S61),  I  Allen  262,  where  there  was  a  trust  and  the  action  was  by  the  cestui  que  trust  against 
the  trustee.  Such  a  relation  does  not  form  a  simple  promi.se  by  A.  to  B.  for  the  benefit  of 
C.  and  others.  In  re  Empress  Engineering  Co.  (18S0),  16  Ch.  D.  125.  Upon  the  facts  found, 
we  are  not  at  liberty  to  assume,  without  the  delendant's  assent,  that  the  defendants  under- 
stood that  the  plaintiff  was  included  in  the  class  to  be  paid  ;  and  it  is  doubtful,  to  say  the 
least,  if  such  assumption  would  extricate  the  plaintiff's  case  from  the  general  rule." — Per 
C.  Allen,  J.,  citing  Tiveedle  v.  Atkinson,  i  B.  &  D.  393;  In  re  Empress  Engineering  Co.,  16 
Ch.  D.  125:  National  Bank  v.  Grand  Lodge,  98  U.  S.  123,  given  in  text,  infra;  Eeake  on  Con. 
440,  443,  444  ;  Ch  t.  Con.  (nth  Am.  ed.)  74,  75  ;   Dicey  on  Parties,  78 — 84. 

So  also,  Borden  V.  Boardtnan  (1892),  157  Mass.  410:  "  The  case,  reduced  to  its  simplest 
form,  is  one  of  an  agreement  between  two  parties,  upon  sufficient  consideration,  it  may  be, 
1  etweeii  them,  that  one  will  pay,  out  of  funds  in  his  hands  belonging  to  the  other,  a  specific 
sum  to  a  third  person,  who  is  not  a  party  to  the  agreement,  and  from  whom  no  consideration 
moves.  It  is  -well  settled  in  this  State  that  no  action  lies  in  such  a  case  in  favor  of  such  third 
party  to  recover  the  money  so  held  of  the  party  holding  it.  .  .  Certain  exceptions  which  were 
supposed  to  exist  have  either  been  shovpn  not  to  exist,  or  have  1  een  confined  within  nar- 
rower limits.  Exchange  Bank  v.  Rice,  107  Mass.  37  ;  Marston  v.  Bigeloiv,  150  Mass.  45.  ^\e 
have  assumed  that  the  sum  which  the  defendant  agreed  to  pay  the  plaintiff  was  specific." — 
/fe»' Morton,  J.,  (412 — 413).  See  also  White  v.  Moiint  Pleasant  Mills  Corp.  (1899),  172  Mass. 
462.  For  statutory  modifications  of  the  Massachusetts  doctrine,  sec  Dean  v.  American  Legion 
of  Honor  (1S92),  156  Mass.  435  ;   Brierly  v.  Equitable  Aid  Union  (1898),  170  Mass.  218. 

Contra  also  :  Butterfield  v.  Hartshorn  (1834),  7  N.  H.  345  ;  but  see  Lang  v.  Henry  (1873), 
54  N.  H  57,  63.  McCarieney  v.  Wyoming  National  Bank  (1875),  I  Wyo.  3S2  (where  the  con- 
tract was  under  seal). 

For  a  typical  change  of  doctrine  from  that  of  these  Massachusetts  cases  to  that  recognized 
in  Lawrence  v.  Fox,  see  Harvey  Lumber  Co.  v.  Herriman  &  Curd  Lumber  Co.  (1890),  39  Mo. 
App.  214,  given  in  the  text,  infra.  See  also  Ellis  v.  Harrison  (1891),  104  Mo.  270:  "In  Mis- 
souri, a  person  for  whose  benefit  an  express  promise  is  made,  iii  a  valid  contract  between 
others,  may  maintain  an  action  upon  it  in  his  own  name.  This  proposition  is  now  too 
firmly  settled  as  part  of  the  law  of  this  State  to  require  re-examination.  Whether  it  is 
logically  deducible  from  comrnon-law  principles  (as  has  been  sometimes  doubted)  it  would 


^ 


240  IX   WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 

serve  no  useful  purpose  now  to  consider.  It  has  been  accepted  here,  as  in  most  of  the 
American  States,  because  it  is  supposed  to  furnish  a  useful  rule  in  practice,  tendmg  o 
simplify  litigation.  By  following  it  one  action  often  effects  the  same  result  that  two  would 
be  required  to  accomplish  without  it. 

"  Moreover  by  our  code  of  procedure,  it  is  provided  that  every  action  shall  be  prosecuted 
in  the  name  of  the  real  party  in  interest,  with  certain  exceptions,  one  of  which  is  that  the 
trustee  of  an  express  trust  may  sue  in  his  own  name.  The  statute  then  declares  that  such 
a  trustee  '  shall  be  construed  to  include  a  person  with  whom,  or  in  whose  name,  a  contract 
is  made  for  the  benefit  of  another.'  R.  S.  1889,  sees.  1990,  1991.  Reading  these  sections 
together,  it  would  seem  to  be  clearly  implied  that  the  beneficiary  in  such  a  contract  is  to  be 
re-ardcd  ai  a  real  party  in  interest,  and  that,  as  such,  he  may  sue  thereon  in  his  own  name; 
while  on  the  other  hand,  the  contracting  party  (as  trustee  of  an  express  trust,  within  the 
statutory  definition)  may  likewise  maintain  an  action  on  the  same  contract."-iR?r  Bar- 
clay, J.,  (p.  277). 

See  also  Sacramento  Lumber  Company  v.  Wagner  [18S5],  67  Cal.  293,  295,  where  Belcher, 
C  C  delivering  the  opinion,  remarks  :  "  It  is  claimed  that  the  debt  was  the  obligation  of 
John  Wagner,  and  that  a  p  omise  made  to  John  Wagner  or  Michael  Wagner  could  not  oper- 
ate as  a  prom'ise  t  j  the  plaintiff,  or  to  Hartwell,  Hotchkiss  &  Stalker,  on  which  they  could 
sue,  for  the  reason  that  there  was  no  privity  1  etween  the  parties. 

"The  same  point  was  made  and  maintained  in  McLarenv.  Hutchinson,  18  Cal.  So.  The 
Court  said  :  '  In  this  case  the  de.endant  purchased  of  one  Beach  a  tract  of  land,  and  as.  a 
part  of  the  consideration  agreed  to  pay  certain  debts  specified  in  the  complaint.  Neither  the 
plaintiff  nor  any  of  the  persons  to  whom  the  debts  were  owing  were  parties  to  the  agree- 
ment, and  it  does  not  appear  that  they  ever  assented  to  or  attempted  in  any  manner  to  con- 
nect themselves  with  the  transaction  prior  to  the  commencement  of  the  suit.  The  plaintiff 
is  the  present  holder  of  these  debts,  and  the  question  is  whether  he  can  maintai;i  an  action 
against  the  de.''endant  for  their  recovery.  It  is  clear,  we  think,  that  he  cannot.  Th-.re  is  no 
privity  between  the  parties  and  the  legal  position  of  the  plaintiff  is  that  of  a  stranger  to  the 
agreement.' 

"The  same  point  was  again  made  in  Lewis  v.  Covillaud,  21  Cal.  1S9,  and  speaking  of 
McLaren  v.  Hutchinson,  the  Court  said  :  '  In  that  case  the  suit  was  upon  an  agreement  made 
by  the  defendant  with  a  third  person  to  pay  a  debt  owing  by  the  latter  to  the  plaintiff,  and 
we  held,  that  as  the  plaintiff  was  not  a  party  to  the  agreement,  the  action  could  not  be 
maintained.  Th;;  decision  was  placed  upon  the  ground  that  there  was  no  privity;  but  since 
the  case  was  decided,  the  matter  has  frequently  been  called  to  our  attention,  and  we  are  by 
no  means  satisfied  with  the  rule  laid  down.  The  agreement  was  founded  upon  a  sufficient 
consideration,  and  the  modern  doctrine  in  such  cases  seems  to  be  in  favor  of  the  mainte- 
nance of  the  action.' 

"We  are  satisfied  that  an  action  like  that  described  in  j^/c/.a>-^«  i'. //«/<r/e"«o«  may  be 
maintained,  and  that  the  court  did  not  err  in  this  case  in  rendering  judgment  in  favor  of 
the  plaintiff.  (Barker  v.  Bucklin,  2  Denio,  45;  Delaware  and  Hudson  Canal  Co.  v.  Westchester 
Co.  Bank,  4  Denio,  97:  Lawrence  v.  Fox,  20  N.  Y.  26S;  Turk  v.  Ridge,  41  N.  Y.  206;  Barker  v. 
Bradley,  42  N.  Y.  316;  Arnold  v.  Lyman,  17  Mass.  400  ;  9  Am.  Dec  154)" 

To  the  same  effect  are  Malone  v.  Crescent  City  Mill  and  Transportation  Company  (18S8), 
77  Cal.  38,  44;  Chung  Kee  v.  Davidson  (1894),  102  Cal.  188,  197.— JJrf. 


BURR   V.    HEERS.  241 


BURR  -'.   BEERS. 

Court  of  Appkai^s  of  New  York,  December,   i86i. 

[24  A^.  Y.   178.] 

Appeal  from  a  judgment  of  the  Supreme  Court  in  favor  of  the  plaintiff. 

The  action  was  brought  to  recover  the  amount  of  two  mortgages 
executed,  with  his  bonds,  by  E.  F.  Bullard  to  John  Cramer,  committee 
of  the  estate  of  Charles  Burr  (the  plaintiff's  intestate),  for  $1,000  and 
$2,000  respectively.  After  giving  the  mortgages,  which  covered  several 
parcels  of  lands,  Bullard  conveyed  both  parcels  to  the  defendants  by  a 
deed  containing  a  recital  and  covenant  in  the  following  words  : 

"Subject  to  two  mortgages  held  by  John  Cramer,  committee  of  the  estate  of 
Charles  Burr,  bearing  date,  &c.  {describing  the  ynortgages),  which  mortgages 
are  deemed  and  taken  as  a  part  of  the  consideration  of  this  conveyance,  and 
which  the  party  of  the  second  part  hereby  assumes  to  pay." 

Charles  Burr  was  restored  to  the  possession  and  control  ot  his  estate 
by  an  order  of  the  Supreme  Court ;  and  he  prosecuted  this  suit  to  judg- 
ment, but  died  pending  this  appeal.  The  action  was  continued  in  the 
name  of  the  plaintiff  as  his  administratrix. 

The  plaintiff  on  the  trial  proved  the  actual  delivery  of  the  deed  by 
Bullard,  to  the  defendant.  The  defendant  objected  that  there  was  no 
privity  of  contract  between  him  and  the  plaintiff ;  but  the  justice  (before 
whom  the  case  was  tried  without  a  jury)  held  otherwise.  Judgment 
was  given  for  the  plaintiff  for  the  amount  of  the  mortgages,  which  was 
affirmed  at  a  general  term,  and  the  defendant  appealed  to  this  court. 

/.  D.  Beers,  for  the  appellant. 

E.  P.  Bullard,  for  the  respondent. 

Denio,  J. — If  the  plaintiff  had  sought  to  foreclose  the  mortgages  in 
question,  and  to  charge  the  defendant  with  the  deficiency  which  might 
remain  after  applying  the  proceeds  of  the  sale,  and  had  made  both  the 
mortgagor  and  the  present  defendant  parties,  the  authorities  would  be 
abundant  to  sustain  the  action  in  both  aspects.^  But  I  do  not  under- 
stand that  the  right  to  a  personal  judgment  for  the  deficiency  is  based 
upon  the  notion  of  a  direct  contract  between  the  grantee  of  the  equity 
of  redemption,  and  the  holder  of  the  mortgage.  The  cases  proceed  upon 
the  principle  that  the  undertaking  of  the  grantee  to  pay  off  the  incum- 
brance is  a  collateral  security  acquired  by  the  mortgagor,  which  inures 
by  an  eqtiitable  subrogation  to  the  benefit  of  the  mortgagee.  Then  the 
statute  relating  to  foreclosures  provides  that  if  the  mortgage  debt  be 

1  Citing,  Curtis  v.  Tyler,  9  Paige,  432;  Halsey  v.  Reed,  id.,  446;  March  v.  Pike,  10  id.,  595, 
Blyer  v.  Monholland,  2  Sandf.  Ch.  R.,  47S:  King  v.  Whitely,  10  Paige,  465;  Trotter  v.  Hughes, 
2  Kern.,  74;  Vail  v.  Foster,  4  Comst.,  312;  Belmont  v.  Coman,  22  N.  Y.,  438. 


242  IN   WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 

secured  by  the  obligation  or  other  evidence  of  debt  executed  by  any 
other  person  besides  the  mortgagor,  such  person  may  be  made  a  defend- 
ant, and  may  be  decreed  to  pay  the  deficiency.  2  i^.  5.,  p.  191,  §  154. 
Chancellor  Walworth  puts  the  right  to  a  personal  judgment  in  such  a 
case,  upon  the  equity  of  this  statute, ^  and  Vice-Chancellor  Sandford 
expressly  saj-s,  that  the  obligation  is  not  enforced  as  being  made  by 
the  grantee  of  the  equity  of  redemption  under  such  a  deed,  to  the 
mortgagee,  but  as  a  promise  by  the  former  to  the  mortgagor,  to  pay 
him  the  amount  of  the  mortgage ;  by  paying  it  to  the  mortgagee  in 
payment  of  his  debt,  which  promise  the  mortgagee  is  equitably  enti- 
tled to  lay  hold  of  and  enforce  under  the  eqtiity  of  the  .statute  referred  to.' 

It  is  obvious,  that  the  judgment  of  the  Supreme  Court  in  the  present 
case  can  not  be  sustained  upon  the  doctrine  referred  to.  The  plaintiff: 
does  not  ask  to  foreclose  the  mortgage  and  does  not  make  the  principal 
debtor  Bullard,  a  party.  If  the  judgment  can  be  supported  at  all,  it 
must  be  upon  the  broad  principle  that  if  one  person  make  a  promise  to 
another,  for  the  benefit  of  a  third  person,  that  third  person  may  main- 
tain an  action  on  the  promise. 

Upon  that  question  there  has  been  a  good  deal  of  confl^ict  of  judicial 
opinion.  As  long  ago  as  18 17,  Chancellor  Kent  laid  it  down  as  a  point 
decided,  and  referred  to  not  less  than  eight  English  and  American 
cases,  as  sustaining  the  principle.^  And  since  then  it  has  been  fre- 
quently affirmed  by  judges,  after  an  attentive  examination  of  cases,  as 
in  Barker  v.  Bucklin,  2  Denio,  45,  and  in  cases  therein  referred  to. 
These  cases,  and  also  those  referred  to  by  Chancellor  Kent,  are  doubt- 
less subject  to  some  of  the  criticisms  which  have  since  been  applied  to 
them.  Some  of  the  opinions  were  pure  obiter  dicta,  and  in  others,  the 
cases  though  presenting  the  point  were  decided  upon  other  grounds. 
It  can  not  however  be  denied,  that  the  doctrine  had  been  so  often 
asserted,  that  it  had  become  the  prevailing  opinion  of  the  pro- 
fession, that  an  action  would  lie  in  such  a  case  in  the  name  of 
the  creditor,  for  whose  benefit  the  promise  was  made.  Finally  the 
question  came  squarely  before  the  court  in  Lawrence  v.  Fox,  20  N.  Y., 
268,  and  we  held,  with  hesitation  on  the  part  of  a  portion  of  the  judges 
who  concurred,  while  others  dissented,  that  the  action  would  lie.  We 
must  therefore  regard  the  point  as  definitely  settled,  so  far  as  the  courts 
of  this  State  are  concerned. 

The  judgment  appealed  from  being  in  accordance  with  the  law  as 
adjudged  in  that  case,  must  be  affirmed. 

LoTT,  J.,  also  delivered  an  opinion  for  affirmance,  and  all  the  judges 
concurred.  Judgment  affirmed} 

1  Curtis  V.  Tyler  (1842),  9  Paige,  432,  435. 

2Blyer  v.  Munholland  (1845),  2  Sandf.  Ch.  478,  4S0. 

3  Citing,  Cumberland  v.  Codrington,  3  J.  C.  R.  255. 

■4  See  Thompson  v.  Bertram  (1S63),  14  Iowa,  476.  Helms  v.  Kcarns  (1872),  40  Ind.  124. 
Anthony  v.  Herman  (1875),  '4  Kan.  494.  Bo'ven  v.  Beck  (1883),  94  N.  Y.  86.  Warren  v. 
IVitder  (18S9),  114  N.  Y.  209.     IVilliams  71 .  Naftzger  {i^^) ,    103  Cal.  438.     Green  v.  Morrison 


RICE    Z'.    SAVERY.  243 


RICE  V.  SAVERY.  "^ 

Supreme  Court  of  Iowa,  June  Term,  1867. 
[22  /o:aa,  470-] 

The  plaintiff  appeals  from  an  order  of  this  District  Court,  sustaining 
a  demurrer  to  his  p.etition. 

The  petition  and  accompanying  exhibits  show  the  following  facts: 
On  the  9th  day  of  May,  1856,  certain  citizens  of  Fort  Des  Moines, 
now  the  City  of  Des  Moifies,  signed  a  written  instrument,  as  follows : 

"Whereas,  we  deem  it  desirable  that  a  spacious  hotel  shall  be  erected  and  kept 
in  the  town  of  Fort  Des  Moines,  and  whereas  it  is  suggested  that  such  a  hotel 
will  be  so  erected  and  kept,  provided  a  loan  of  money  is  made  for  that  purpose 
at  ten  per  cent  interest  per  annum  : — 

"Now  we  do  severally  agree  with  each  other  that  we  will  become  subscribers  to 
such  loan,  to  the  amount  of  the  several   sums  set   against  our  respective  names. 

(1S79),  5  Colo.  18.  [P.  sues  D.  upon  his  promissorj'  note.  D.  admits  the  making  of  the  note 
and  that  it  is  due,  but  sets  up  that  one  S.,  being  indebted  to  D.,  had  mortgaged  certain  lands 
to  him,  and  afterwards,  before  maturity  of  the  mortgage,  had  conveyed  this  land  to  P.,  upon 
his  promise  to  S.  to  pay  the  latter's  debt  to  D.  under  the  mortgage.] 

Corn-pare  Josseiyjt  v.  Edwards  (1877),  57  Ind.  212  ;  "A  tract  of  real  estate  which  was  encum- 
bered by  a  mortgage  executed  by  the  owner  to  another,  to  .secure  the  payment  of  a  promis- 
sory note  for  a  certain  sum,  waiving  valuation  laws  and  stipulating  for  attorney  fees,  was 
conveyed  by  the  owner  to  a  third  person  by  a  I'eed,  which,  particularly  describing  such 
encumbrance,  provided  that  the  grantee,  as  part  of  the  consideration  for  such  conveyance, 
should  assume  and  pay  the  same  at  maturity,  "in  accordance  with  the  terms  thereof." 
Such  grantee  having  made  default  in  such  payment,  his  grantor  paid  off  the  same  and 
brought  an  action  against  the  grantee  to  recover  the  same,  //eld,  that  the  plaintiff,  being 
himself  bound  for  such  debt  to  the  mortgagee,  by  paying  off  the  same,  becam  ■  subrogated 
to  the  rights  of  the  latter,  and  was  entitled  to  a  judgment  for  the  amount  of  s  .ch  note, 
waiving  valuation  laws  and  including  attorney  fees,  and  to  have  foreclosure  of  such  mort- 
gage, //eid,  also,  that,  as  between  the  defendant  and  the  plaintiff,  their  relations  became, 
by  such  contract  of  conveyance,  that  of  principal  and  .surety  respectively  on  such  debt. 

See  also,  Thompson  Admx.  v.  Thompson  et  al.  (1854),  4  O.  S.  333,  350  :  "It  seems  to  be  a 
well  settled  principle,  that  the  purchaser  of  an  encumbered  estate,  if  he  agree  to  take  it 
subject  to  the  incumbrance,  and  an  abatement  is  made  in  the  price  on  that  account,  isboand 
to  indemnify  his  grantor  against  the  incumbrance,  whether  he  expressly  promises  to  do  so 
or  not— a  promise  to  that  effect  being  implied  from  the  nature  of  the  tran.saction.'"— /i?r 
Thurman,  C.  J. 
'  In  Dingeldein  v.  Third  Avenue  R.  R.  Co.  (1868),  37  N.  Y.  575,  577,  Hunt,  C.  J.,  remarks  : 
"Two  principles  applicable  to  this  case,  must  now  be  deemed  as  settled:  First,  that  in  a 
contract  between  A.  and  B.,  wherein  B.  assumes  and  undertakes,  upon  a  good  consideration 
from  A.,  to  pay  a  certain  sura  of  money  to  C,  the  latter  raay  maintain  an  action  against  B. 
to  recover  the  money,  and  this,  although  the  arrangement  was  originally  made  without  his 
knowledge  or  assent.  This  principle  has  been  established  both  where  personal  property 
was  the  subje  t  of  the  contract,  and  where  real  estate  was  conveyed,  upon  which  there  was 
a  mortgage,  the  amount  of  which  the  grantee  promised  that  he  would  pay  to  the  mortgagee. 
(I^awrence  v.  Fox,  20  N.  Y.  268;  Burr  v.  Beers,  24  N.  Y.  178  ;  Hartley  v.  Harrison,  id.  171  ; 
Russell  V.  Pictor,  3  Seld.  171).  Secondly,  that  where  land  is  conveyed  simply  '  subject  to  a 
mortgage,'  and  there  is  no  express  agreement  to  pay,  no  agreement  will  be  implied;  and 
no  action  involving  a  personal  liability  can  be  maintained  by  the  mortgagee  against  the 
buyer.     (Belmont  7'.  Coman,  22  N.  Y.  438.) 

"The  plaintiff  bases  kis  claim  upon  thefirstofthe.se  principles;  the  defendants  resist  it 


24i  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

and  that  we  will  pay  the  full  amount  of  the  same  over  to  our  attorney  herein- 
after named,  and  authorize  their  collection  by  process  of  law  ;  severally  binding 
ourselves  to  comply  with  the  conditions  herein  expressed.  And  we  do  hereby 
irrevocably  constitute  and  appoint  R.  W.  Sypher,  B.  F.  Allen  and  Lovell  White 
our  lawful  attorneys  in  fact,  with  power  to  appoint  successors  in  case  of  death 
or  resignation,  for  us  and  in  our  behalf  to  act  and  do  for  us  in  all  things  pertain- 
ing to  said  loan,  with  power  to  do  all  things  in  relation  thereto  that  we  might  do 
if  present,  and  especially  to  make  a  loan  for  the  purpose  aforesaid  to  the  full 
amount  of  the  aggregate  of  our  subscriptions,  to  any  person  they  may  deem 
suitable  on  the  terms  following,  viz  :  Said  loan  to  be  without  interest  until  the 
occupancy  of  some  part  of  said  hotel,  thence,  interest  at  ten  per  cent  per  annum, 
the  principal  to  be  repaid  in  five  equal  annual  payments,  the  first,  in  two  years 
from  said  occupation.  And  we  further  authorize  our  said  attorneys  to  take  such 
security  for  said  loan,  and  in  such  manner  as  they  may  deem  satisfactory,  and 
to  contract  for  the  building  of  a  hotel,  and  to  collect  our  subscriptions  at  such 
times  and  in  such  sums  as  may  be  required  for  the  speedy  completion  of  said 
hotel.  Signed, 

'■  White  &  Henry $4,000. 

"Cook,  Sargent  &  Cook,    .     .       1,000. 

"Thompson  Bird,     ....        2,000." 

To  this  document  there  were  many  other  signatures,  on  the  same  day, 
the  subscriptions  thus  made  amounting  in  all  to  about  $40,000. 

On  the  same  day,  May  9,  1856,  the  said  Sypher,  Allen  and  White  en- 
tered into  a  written  contract  with  James  C.  Savery,  the  defendant,  in 
substance  as  follows  : 

"This  contract,  made  between  R.  W.  Sypher,  B.  F.  Allen  and  Lovell  White, 
as  attorneys  for  Thomas  Bird  and  others  of  the  first  part,  and  James  C  Savery 
of  the  second  part,  witnesseth, 

"That,  whereas  the  said  Bird  and  others  have  this  day  entered  into  an  agree- 
ment to  and  with  each  other,  to   make  a  loan   to  the   said  Savery,  to  secure  the 

upon  the  second.  If  the  article  of  transfer  of  October  8,  1853,  may  fairly  be  held  to  contain 
a  promise  to  pay  the  plaintiff's  debt,  he  may  recover  upon  it.  If  not,  he  must  fail  or  seek 
some  other  ground. 

'"  In  the  case  of  Belmont  v.  Coraan  (supra),  it  was  held  that  the  tra<isaction  amounted 
simply  to  a  conveyance  of  the  equity  of  redemption  of  the  land.  The  deed  contained  full 
covenants,  and  the  recital  of  the  mortgages  was  to  qualify  simply  the  grantor's  liability  on 
his  covenants.  The  conveyance  of  the  land,  with  its  liability  to  the  incumbrances  specified, 
was  the  evident  and  sole  intention  of  the  parties.  The  deed  containing  no  express  promise 
to  pay  the  liens,  it  was  held,  and  rightly,  that  none  should  be  implied. 

"In  the  present  case  the  language  of  the  instrument  and  the  intent  of  the  parties  are 
different.  Here  was  no  encumbrance  on  the  property  conveyed.  The  contract  to  indemnify 
the  builder  of  the  sewer  was  merely  the  personal  obligation  of  the  partner.ship 
and  was  not  a  lien  upon  the  property  conveyed.  The  intent  to  qualify  a  liability  arising 
from  such  lien  upon  the  property  conveyed,  could  not,  therefore,  exist.  The  only  con- 
ceivable intent  with  which  this  sewer  contract  was  thus  referred  to,  was  to  furnish  the 
evidence  that  the  new  company  would  pay  to  Dingeldein  the  amount  which  the  partner- 
ship was  bound  to  pay,  under  the  resoluion  referred  to.  The  fact  that  in  Belmont  v.  Coman 
the  words  were  necessary  to  qualify  the  grantor's  liability,  and  that  here  there  was  no 
such  occasion,  gives  a  d  fferent  rule  for  the  construction  of  the  words  in  the  two  cases." 
See  further.  Society  0/  Friends  i\  Haines  (iSgo),  47  O.  S.  423,  holding  that  an  agreement  by 
a  vendee  of  land,  receiving  title  by  a  quit  claim  deed,  made  with  the  grantor,  as  part  of  the 
consideration  of  the  transfer,  to  assume  and  pay  the  grantor's  debt  received  by  mortgage 


RICE   V.    SAVER Y.  245 

erection  of  a  building  for  a  hotel  on  Lots  ii  and  12,  Block  21,  Fort  Des  Moines, 
and  have  become  subscribers  for  various  sums  to  said  loan,  and  have  appointed 
said  Sypher,  Allen  and  White  their  attorneys,  to  act  for  them  : 

Now,  therefore,  the  said  parties  of  the  first  part,  as  said  attorneys,  in  consid- 
eration of  the  covenants  of  said  Savery,  agree  as  follows  :  That  they  will  loan 
Savery  all  money  which  may  be  paid  to  them  on  said  subscription,  on  the  fol- 
lowing terms  [the  same  as  the  foregoing  instrument]  and  pay  it  to  him  as  it  may 
be  needed  to  pay  for  labor  or  material  in  said  building.  That  they  will  use  all 
means  in  their  power  to  enforce  collections  of  the  subscriptions.  In  considera- 
tion of  which  Savery  agrees: 

"  That  he  will  build  a  hotel  on  said  lots   on    or    before    July,  1858.     That  he 

will  receive  as  a  loan  from  said  attorney's  all  money  subscribed  and  paid  to  them, 

and  faithfully  apply  to  the  erection  of  said    building,  which    shall  be   used  as  a 

hotel  while  the  loan  herein  mentioned  is  outstanding.      Said   White   is  to  be   the 

treasurer  of  said  board  of  attorneys,   to  whom  application  for  money  is  to  be 

made  by  the  said  Savery.  Signed, 

"R.  W.  Sypher, 

"B.  F.  Allen, 

' '  LovELL  White, 

"J.  C.  Savery." 

On  the  9th  day  of  May,  1856,  the  said  defendant  executed  and 
delivered  to  the  said  attorneys  the  following  note  or  instrument  for 
$60,000,  viz: 

"  $60,000.  One  day  after  date,  for  value  received,  I  promise  to  pay  to  the  order 
of  Reuben  W.  Sypher,  Benjiman  F.  Allen  and  Lovell  White,  sixty  thousand 
dollars.  The  conditions  of  this  note  are  as  follows,  to  wit:  Whereas  the  said 
Sypher,  Allen  and  White,  as  attorneys,  have  this  day  made  and  concluded 
certain  articles  of  agreement  with  the  undersigned,  James  C.  Savery,  by  which 
they  are  to  loan  him  money  to  secure  the  erection  and  furnishing  of  a  hotel  in 
Fort  Des  Moines:  Now,  therefore,  if  the  said  Savery,  his  heirs  or  assigns,  shall 
well  and  truly  repay  to  said  Sypher,  Allen,  and  White  all  money  by  them 
advanced  to  him  or  paid  to  his  order,  or  on  his  account,  for  which  they  hold  his 
check  or  receipt,  or  of  the  payment  of  which  they  may  have  other  proof,  in  five 
equal  annual  payments,  the  first  of  which  is  to  be  made  in  two  years  from  the 
occupation  of  the  building  said  Savery  is  to  erect,  with  interest  on  the  same 
from  and  after  said  occupation,  at  ten  per  cent  per  annum,  payable  annually, 
then  this  note  to  be  void,  otherwise  of  full  force  and  virtue.      J.  C.  Savery." 

On  the  same  9th  day  of  Ma.y,  the  said  Savery  and  wife  executed  to 
one  Bradshaw,  as  trustee,  a  deed  of  trust  on  said  lots  eleven  and  twelve, 
block  tw^enty-one,  to  secure  the  above  copied  instrument  for  $60,000. 

The  plaintiff's  assignors.  Green,  Weare  &  Rice,  at  defendant's  solici- 
tation, became  subscribers  to  said  loan  to  the  amount  of  $500,  which 

on  the  land  may  be  enforced  by  the  mortgagee,  although  such  contract  is  not  embodied  in 
the  deed;  that  such  contract  is  not  necessarily  invalid  because  not  in  writing;  that  although 
executed  by  a  married  woman  in  1SS3,  it  may  be  enforced  against  her  by  the  mortgagee  if 
it  is  shown  that  she  has  separate  estate,  that  the  transaction  out  of  which  the  contract 
grew  had  reference  to  owners  for  the  benefit  of  their  separate  estate,  and  that  she  intended 
to  charge  this  estate  with  its  payment;  and  that  it  is  not  error,  in  such  a  case,  to  render  a 
personal  judgment  against  her. — Ed. 


246 


IN   WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 


sum  they  paid  to  said  attorneys,  and  which  plaintiff  alleges  was 
paid  over  by  the  attorneys  to  the  defendant.  On  the  23d  day  of  April, 
1857,  the  said  Green,  Weare  &  Rice  received  from  the  directors  of 
said  loan  the  following  certificate  of  stock  : 

"$500  Certificate  of  Stock,   Savery  Hotel  Loan  No.  14. 

"It  is  hereby  certified  that  Green,  Weare  &  Rice,  having  paid  the  full  amount 
of  their  subscription  to  the  Savery  Hotel  Loan,  are  the  owners  therein  of  five 
hundred  dollars,  being  the  amount  so  paid.  This  certificate  being  the  evidence 
thereof,  assignable  by  indorsement  and  delivery. 

"Witness  the  hands  of  the  directors  of  said  loan,  this  23d  day  of  April,  A.  D., 
1857.  "  R.  W.  Sypher, 

"B.   F.  Allen, 
"  LovELL  White. 
"  Directors  SaTerv  Hotel  Loan.  " 


On  the  back  of  this  certificate  is  the  following  assignment: 

"We  hereby  assign  to  B.  Rice  all  our  right,  title,  and  interest  in  the  within 
certificate,  for  value  received. 

"March  30,  i860.  Green.  Weare  &  Rice." 

The  present  action  is  brought  by  Rice,  alone,  against  Savery,  to 
recover  the  $500  subscribed  by  Green,  Weare,  and  Rice. 

The  petition  is  at  law  and  seeks  no  lien.  It  makes  no  party  defend- 
ant but  Saver}-.  It  states  the  foregoing  facts,  sets  up  the  foregoing 
instruments  and  alleges  that 

"  the  object  the  said  parties  had  in  view  in  making  said  note  cover  the  sum  of 
$60,000,  was  not  only  to  cover  the  sums  there  subscribed,  but  also  all  future 
subscriptions  to  said  loan;  and  that  the  full  time  for  the  payment  of  said  loaus 
has  expired,  and  the  same  is  now  due.  with  interest  from  April  30,  1857." 

To  this  petition  defendant  demurred,  because  the  moneys  advanced 
to  said  Savery  were  payable  only  upon  the  order  of  the  attorneys. 
Sypher,  Allen,  and  White,  and  no  such  order  to  plaintiff  is  averred; 
because  said  Syper,  Allen,  and  White,  trustees,  and  tjhe  other  subscribers 
to  the  loans,  are  not  made  parties ;  because  this  court  has  no  jurisdic- 
tion nvpf  frusts  :  because  no  privity  of  Vontrart  between  plaintiff  and 
defendanT  is  shown ;  because  it  is  not  averred  that  deiendant  ever 
promised  to  pay  Green,  W^-^^-"  ^  P^'^*"  onyfhitig-  This  demurrer  was 
sustained.     Plaintiff  excepted  and  appeals. 

Byron  Rice,  pro  se. 
Withrow  &  Wright  and  C.  C.  Nourse,  for  the  appellee.^ 

Dillon,  J. — The  grounds  of  demurrer,  urged  in  argument,  are  resolv- 
able into  two  :  First,  it  is  insisU-d  that  there  is  no  privity  of  contract 
between  the  plaintiff  and  the  defendant,  and  hence  the  action  is  not 
maJnT?\i"i'\ble  iti  the  i:)laintiff's  name.     Serond,  it  is  claimed   that  ihere 

1  Tlic  arfrumeiits  are  omitted. 


RICE   V.    SAVERY.  247 

is  a  defect  of  pnrtic"^  plni-nHfT  innc;-ipnr]T  as  the  trustees  (SypTier,  Allpn 
and  White),  if  not  the  other  subscribers  to  the  loan,  are  necessary  par- 
ties These  objections,  kindred  in  their  nature,  will  be  considered  to- 
gether. 

The  Revision  has  made  great  changes  in  relation  to  parties  to  actions. 
Chap.  117.  ., 

It  is  no  longer  absolutely  necessary  (§§  2757  and  2758)  that  the  party  \  l^jT^ 
to  whom  a  promise  is  made  shall  be  the  plaintiff  on  the  record,  in  an 
action  to  enforce  it.  That  is  to  say,  if  the  promise  is  made  for  the  bene- 
fit of  another  who  is  the  real  party  in  interest,  the  latter  may  sue, 
though  the  contract  or  promise  be  made  to  an  agent  or  trustee ;  or  in 
the  case  last  supposed,  the  agent,  or  trustee,  or  person  in  whose  name 
a  contract  is  made  for  the  benefit  of  another,  may  sue  without  joining 
the  party  for  whose  benefit  the  suit  is  prosecuted.  This  is  well  settled 
by  the  previous  adjudications  of  this  court. ^ 

Applying  the  settled  construction  of  these  sections  (§§  2757,  2758,)  to 
the  present  case,  we  admit,  that  since  b}'  the  note,  so  called  (we  refer  to 
the  instrument  for  $60,000),  the  defendant  promised  to  pay  the  trustees, 
they  might  have  sued  him  upon  it  in  their  own  names  without  joining 
the  subscribers. 

We  say  the  trustees  might  have  sued.  But  nuist  the  suit  be  brought 
by  them  ? 

It  is  argued  that  the  trustees  are  necessary  parties,  because  they  are 
entitled  to  commissions  ;  therefore,  it  is  claimed,  it  would  be  unjust  to 
hold  that  the  beneficiaries  may  sue,  and  thus  deprive  the  trustees  of 
their  compensation.  There  is  nothing  in  this  objection,  at  least  when 
coming  from  the  defendant.  The  trustees  have  stipulated  for  no  com- 
missions. If  entitled  to  any,  this  is  a  matter  between  them  and  the 
subscribers,  a  matter  with  which  the  defendant  has  no  concern. 

In  favor  of  the  defendant's  view,   that  the  trustees  mtist  bring  the  I 
suit,  there  is  really  but  one  argument  which  has  any  force,  and  that  is, 
that  such  an  action  will  protect  him  from  a  multitude_Q£.  suits.     This 
objection  travels  outside  the  record.     The  demurrer  speaks.     It  is  not 
alleged  in  the  petition,  and  hence  we  do  not  know,  that  there  are  any  ■     .•    . 
unpaid  subscribers  to  the  loan  except  the  plaintiff.  .   '   tfj'* 

Upon  the  theory  propounded  by  defendant's  counsel,  it  would  scarcely  .     ' 

be  denied  by  them,  that  all  the  unpaid  subscribers  might  join  in  an     v*^ 
action  on  the  instrument  for  $60,000.     At  all  events  such  a  proposition      J^  "^ 
could  not  be  successfull}'  denied.     They  would  be  the  real  parties  in 
interest,  and  hence,  under  the  expositions  of  sections   2757  and  275S, 
could  sue  without  joining  the  ti'ustees. 

If  this  is  true,  then  the  plaintiff",  if  he  is  the  only  unpaid  subscriber, 
may  alone  sue  upon  it,  and  we  repeat  that,  so  far  as  the  petition  shows, 
the  plaintiff  is  the  only  unpaid  subscriber.      Indeed,  it  is  not  expressly 

1  Citing,  Conynghain  v.  Smitk  i6  Iowa,  471;  Cottle  v.  Cole,  20  Iowa,  4S2;  Taylor  v.  Adair, 
22  Iowa,  279. 


•If* 


248 


IN   WHOSE   NAME    THE   ACTION  SHOULD   BE   BROUGHT. 


averred  in  the  petition  that  any  of  the  other  subscribers  ever  paid  their 
subscriptions.  And  the  same  observations  apply  to  an  action,  not 
upon  the  instruments,  but  to  recover  the  amount  loaned;  and  on  this 
point  the  present  appeal  only  requires  us  to  hold  that  if  the  plaintiff  is 
the  only  subscriber  who  is  unpaid,  as  for  aught  discloses  he  is,  he  may 
sue  alone,  and  need  not  join  with  him  the  trustees,  in  an  action  to 
recover  the  amount  by  him  loaned  to  the  defendant. 

On  the  supposition  that  it  shall  appear  that  there  are  other  unpaid 
subscribers,  the  court  are  not  exactly  agreed  in  relation  to  the  right  of 
the  plaintiff  to  sue  in  his  own  name  alone.     A  portion  of  the  court  is 

^  inclined  to  regard  the  transaction  as  a  several  loan  by  the  subscribers, 
each  on  his  own  account ;  and  that,  as  there  was  no  unity  or  comming- 
ling of  interests  among  the  subscribers,  who  were  neither  co-partners 
nor  jointly  interested,  each  may  sue  in  his  own  name  and  by  himself. 
Another  portion  of  the  court  is,  however,  inclined  to  the  view  that  the 
only  promise  by  the  defendant  is  contained  in  the  note  or  instrument 
for  $60,000  ;  that  this  promise  is  single  and  entire,  and  hence  the  de- 
fendant can  not  be  compelled  to  defend  more  than  one  action  brought 
by  the  trustees,  or  by  all  of  the  unpaid  subscribers. 

As  the  cause  must  go  back  for  further  proceedings,  it  has  been 
deemed  advisable  to  suggest  to  the  parties  that  we  are  all  agreed  that, 
if  there  are  other  unpaid  subscribers,  the  trustees,  as  their  representa- 
tives, are  proper  parties  to  the  suit,  either  as  plaintiffs  or  defendants. 
The  plaintiff  may  amend  and  make  them  parties,  changing  his  pro- 
.ceeding,  if  he  so  chooses,  in  equity.     If  it  turns  out  that  the  contro- 

1  versy  can  not  be  determined  without  the  presence  of  the  trustees,  the 

Icourt  must  order  them  to  be  brought  in.     Rev.  §  2765. 

I  So  it  is  in  the  defendant's  power,  to  file  a  cross  petition  against  the 
•plaintiff  and  make  the  trustees  parties,  if  he  has  a  cause  of  action  affect- 
ing the  subject  matter  of  the  present  suit.  §  2892.  And  similarly,  if 
he  has  a  set-off  or  counter-claim.'  So  that  if  there  are  numerou,  claim- 
ants against  the  defendant,  and  he  wishes  to  settle  the  whole  contro- 
versy in  one  suit,  he  has  it  in  his  power  to  accomplish  this  result. 

He  may  allege  against  the  trustees  ( if  made  parties  by  the  plaintiff, 
or  if  the  defendant  makes  them  parties )  any  matter  of  defence  he  may 
have  against  the  instrument,  and  ask  its  cancellation.  They  or  the 
plaintiff  may  contest  this  claim,  and  thus  the  matters  in  controversy 
will,  or  at  least  may,  be  brought  to  an  end.  The  judgment  of  the 
District  Court  sustaining  the  demurrer  is  reversed,  and  the  cause 
remanded  for  further  proceedings  in  accordance  with  this  opinion. 

Reversed. 

1  Rev.  II  2S86,  2888,  2889. 


COSTER    V.    THE   MAYOR    OF   ALBANY.  249 

COSTER  V.  THE  MAYOR  OF  ALBANY. 
Court  of  Appeals  of  New  York,  January  24,  187 1. 

[43  ^-   y-   399-] 

Appeal  from  a  judgment  of  the  General  Term  affirming  a  judgment 
entered  on  a  verdict  in  favor  of  the  plaintiffs. 

The  complaint  alleges  that  the  plaintiffs  were  the  owners  of  Lot  No. 
122,  on  the  Albany  pier;  that,  by  virtue  of  an  act  of  the  New  Y^ork 
Legislature,  entitled  "  An  act  to  improve  the  Albany  basin,  in  the  city 
of  Albany,  and  to  provide  the  means  therefor, "  passed  April  11,  1866, 
the  public  authorities,  authorized  by  said  act,  proceeded  to  make 
changes  in  the  Albany  basin  Ij'ing  between  said  lot  and  Quay  street, 
in  said  city,  and  cut  away  and  removed  that  portion  of  the  Albanj-  pier 
lying  adjoining  to  and  at  the  south  of  said  lot,  and  in  so  doing  under- 
mined the  foundation  of  the  building  standing  on  said  lot,  which  obliged 
the  plaintiffs  to  expend,  in  making  necessary  repairs  thereto,  the  sum 
of  $364.24.  It  also  alleges  that,  under  said  act,  a  bridge  at  the  south 
end  of  said  pier  was  removed,  cutting  off  communication  between  the 
south  end  of  the  pier  and  the  city,  except  by  the  State  street  bridge, 
which  was  at  a  much  greater  distance  from  said  lot ;  and  that,  by  reason 
of  the  removal  of  such  bridge,  the  plaintiffs  were  damaged  to  the  extent 
of  $3,000;  that,  by  an  obligation  entered  into  by  the  defendants  under 
said  act,  thej'  had  assumed  to  pay  all  damages  caused  to  property  by 
the  making  of  the  improvements  under  said  act.  The  obligation,  after 
reciting  the  statute,  contained  an  agreement  by  the  defendants  with 
the  State  to 

"assume  the  payment,  and  that  they  will  pay,  for  any  injuries  to  any  of  the 
bridges  crossing  said  basin  (except  the  Hudson  river  railroad  bridge)  that  shall 
hereafter  occur  or  arise  in  consequence  of  the  improvement  made  in  the  basin, 
as  provided  in  said  act,  and  also  will  pay  all  damages  caused  to  property  by  the 
making  of  such  improvement,  if  any  such  shall  arise  or  accrue,  and  hereby 
assume  all  liability  therefor,  "  etc. 

The  answer  denies  that  the  defendants  are  in  any  way  liable  to  the 
plaintiffs  for  the  damages  alleged  in  the  complaint. 

The  case  came  on  to  be  tried  at  the  Albany  circuit,  January,  1868, 
before  Mr.  Justice  Peckham  and  a  jury,  when  the  jurv*  found  for  the 
plaintiffs  $400.20  for  the  first  class  of  damages,  and  $800  for  the  second. 

From  the  judgment  entered  thereon  the  defendants  appealed  to  the 
General  Term,  where  the  judgment  was  affirmed  ;  and  from  such  judg- 
ment of  affirmance,  this  appeal  was  taken  to  this  court. 

N.  C.  Moak  and  William  H.  Greene,  for  the  appellant. 

A.  J.  Parker,  for  the  respondent.^ 

1  The  arguments  are  omitted. 


25(>  IN    WHOSE    NAMlv    THE    ACTION    SHOULD    BE    BROUGHT. 

FoLGER,  J. — In  this  court,  the  appellants  make  four  points  :  ist. 
That  the  respondents  were  not  entitled  to  damages,  by  reason  of  the 
removal  of  the  Hamilton  street  bridge.  2nd.  Nor  for  the  taking  of 
land  near  their 's,  by  which  their 's  were  rendered  less  convenient  for 
docking  and  unloading,  and  thereby  less  valuable.  3rd.  Nor  for 
injuries  alleged  to  have  been  sustained  by  digging  too  close  to  their 
lands,  and  undermining  their  foundations.  4th.  That  there  is  no 
privity  between  the  respondents  and  the  appellants,  by  which  the  last 
are  liable  in  an  action  to  the  first.     .     .     .^ 

The  next  question  is,  to  whom  is  the  city  of  Albany  liable  ?  The 
sixth  section  of  the  act  provides  that  the  State  shall  not  be  liable  for 
any  damage  to  property,  caused  by  the  making  of  the  improvement ; 
but  that  if  any  claim  shall  arise,  the  same  shall  be  paid  by  the  city  of 
Albany,  which  shall  give  its  assent  to  assuming  such  liability  and  indem- 
nifying the  vState  against  the  same.  So  far  as  this  action  is  concerned, 
the  question  above  put  is  mainly  affected  by  the  provisions  of  this  sixth 
section.  The  city  did  give  its  as.sent,  and  did  covenant  to  assume  the 
payment,  and  that  it  would  pay  all  damages  caused  to  property  by  the 
making  of  the  improvement.  It  did  thereby  assume  all  liabilit}-,  and 
did  agree  to  save  harmless  and  indemnify  the  State  against  any  claim 
or  claims  arising  to  the  propertj'. 

It  is  to  be  observed,  that  the  instrument  executed  b}-  the  cit}-  to  the 
State  is  not  a  bond.  The  city  is  not  bound  in  a  penalty,  from  which  it 
may  be  discharged  on  the  performance  of  a  condition.  So  that  the 
case  of  Turk  v.  Ridge,  41  N.  Y.,  206,  is  not  applicable.  The  instrument 
is  not  an  agreement  of  the  city,  under  its  corporate  seal,  with  the 
State,  for  the  protection  and  indemnity  of  the  State,  and  the  payment 
of  all  damages  caused  to  the  property,  and  by  it  the  city  doth  in  terms 
assume  all  liability  therefor.  In  consideration  that  the  State  would 
do  this  work,  and  in  view  of  the  certain  result,  that  damage  must  be 
done  to  property  in  the  doing  of  it,  the  city  makes  to  the  State  this 
prbmise,  that  it  will  pay  that  damage.  Here  is  the  promise,  the  consid- 
eration, and  the  promisee,  definitely  brought  out.  The  ultimate  benefi- 
ciary is  uncertain.  It  is  settled  in  this  State,  that  an  agreement  made 
on  a  valid  consideration,  by  one  with  another,  to  pay  money  to  a  third, 
can  be  enforced  by  the  third  in  his  own  name.  Lawrence  v.  Fox,  20 
N.  Y.,  26S;  Secorv.  Lord,  3  Keys,  525.  And  though  a  distinction  has 
sometimes  been  made  in  favor  of  a  simple  contract,  Hall  v.  Marston, 
17  Mass.,  575;  D.  &  H.  Canal  Co.  v.  IV.  Co.  Bank,  4  Den.,  97;  it  is 
now  held  that  when  the  agreement  is  in  writing  and  under  seal,  the 
same  rule  prevails.  Van  Schaick  v.  Third  Av.  R.  R.,  38  N.  Y.  346; 
Ricard  v.  Sanderson,  4:  N.  Y.,  179.  Nor  need  the  third  party  be  privy 
to  the  consideration. 2 

1  Only  .so  much  of  the  opinion  is  given  as  relates  to  the  fourth  j  oint 
2Secor  V.  lyOrd,  3  Keys,  525. 


COSTER    t'.    THE   MAYOR    OF   ALBANY.  251 

In  that  class  of  cases  which  hold  that  a  grantee  of  mortgaged  prem- 
ises who  takes  them  subject  to  the  lien  of  the  mortgage,  which,  by 
words  in  the  deed  of  conveyance  to  him,  he  assumes  to  pay,  is  personally' 
liable  to  the  holder  of  the  mortgage  for  the  amount  of  the  mortgage 
debt,  no  question  seems  to  be  made,  but  that  the  action  may  be  main- 
tained in  the  holder's  name,  though  the  agreement  be  not  made  imme- 
diately for  the  benefit  of  the  plaintiff,  nor  he  be  named  in  the  deed. 
Thus  in  Burrv.  Beers,  24  N.  Y.  178,  the  clause  in  the  deed  described 
the  mortgages  as  held  by  John  Cramer,  which  mortgages  the  grantee 
thereby  assumed  to  pay.  And  the  case  last  cited  was  not  an  action  in 
equity,  for  the  foreclosure  of  the  mortgage,  in  which  the  mortgagor  and 
his  grantee  were  both  parties.  (Seepage  179.)  It  was  an  action  to 
recover  a  personal  judgment  against  the  grantee.  The  question  was 
distinctly  raised,  that  there  was  no  privity  of  contract  between  the 
plaintiff  and  the  defendant.  And  the  decision  against  the  defendant 
was  put,  in  the  language  of  Denio,  J.,  "  upon  the  broad  principle,  that 
if  one  person  make  a  promise  to  another  for  the  benefit  of  a  third per'SO?i, 
that  third  person  may  maintain  an  action  on  the  promise. ' '  In  this 
case  the  city  agreed  to  pay  all  damages  caused  to  propert^^  and  assumed 
all  liabilities  therefor.  This  was  a  promise  made  to  the  State,  for  the 
benefit  of  any  third  person,  to  whose  property  damage  was  caused. 
Nor  is  it  an  anomal}-,  that  the  liability  which  the  city  assumes,  is  not 
in  existence  at  the  date  of  its  obligation,  nor  that  the  person  who  is  to 
be  benefited  by  it  is  not  then  known.  So  it  is  with  the  official  bonds 
of  sheriffs  and  other  public  officers.  And  see,  People  v.  Holmes,  5  Wend. 
191.  In  Duttofi  V.  Poole,  3  Bos.  &  Pull.  149,  note  a.,  and  in  Schemer- 
horn  V.  Vanderheydcji,  i  Johns.  139,  the  promisee  was,  at  the  time  of 
making  the  promise,  under  no  legal  liability  to  the  person  for  whose 
benefit  the  promise  was  made. 

Our  conclusion  is  that  the  city  became  liable  to  the  plaintiffs  in  this 
action,  and  that  they  may  maintain  their  action  against  it  upon  the 
facts  as  they  appear. 

Judgment  affirmed  to  the  extent  of  $400.20  damages,  and  reversed  as  to 
residue  of  recovery ,  ivifhout  costs  of  this  appeal  to  cither  party. 

EFFECT    IF   THE    CONTRACT    IS    UNDER    SEAL. 

"  It  seems  to  be  well  established  that  a  party  for  whose  use  a  contract  or  a  stipulation  in  j 
a  contract  is  made,  may  maintain  a  suit  in  his  own  name  on  such  stipu'.ation.  (Bank  of\ 
Missouri  v.  Benoist  a)td  Hackney,  10  Mo.  519  ;  /bobbins  v.  Ayres,  10  Mo.  538 ;  Myeyc  i'.  Lowell, 
44  Mo.  32S  ;  Hayiagan  v.  Hutchinson,  47  Mo.  237.)  The  old  authorities  maintain  that  this 
can  only  be  done  on  contracts  not  under  seal.  This  distinction  was  noticed  by  Judge  Scott 
in  Robbins  v.  Ayres,  10  Mo.  538.  But  that  was  a  suit  on  a  simple  cont.  act,  and  the  question 
was  not  properly  before  the  court  and  w^hat  he  said  must  be  looked  vipon  as  obiter  dicta.  By 
recent  decisions  in  New^  York,  it  is  laid  down  that  no  such  distinction  exists.  (  Van  Skaick 
V.  R.  R.,  38  N.  Y.  346  ;  Ricard  v.  Sanderson,  2  Hand,  179  ;  Coster  v.  The  Mayor  of  Albany,  43 
N.  Y.  399  ;  Lawrence  v.  Fox,  20  N.  Y.  268. )  I  see  no  good  reason  for  keeping  up  this  sort  of 
distinction  1  etween  contracts  under  seal  and  not  under  seal.  If  the  covenant  is  made  for 
the  benefit  of  a  third  person,  why  is  he  not  a  party  to  it  so  as  to  maintain  an  action  in  his 
cwn  name?' '  —  /Vr  Ap  VMS,  J,,  in  Rogers  7\  Ciosnell  (iSy;,),  5^  Mo.  466,  469.  : 


252  IN   WHOSK   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

Accord,  nlso  :  McDowell  v.  Laev  (1874),  35  ^Vis.  171,  175  ;  BasscU  v.  Hughes  (1879),  43  Wis. 
319,  321  ;  Emmitt  v.  Biophy  (1S84),  42  O.  S.  S2,  in  text,  supra. 

Contra:  Packard  v.  Brews/er  {1S71),  59  Mo.  404.  Fairchild  v.  N.  E.  Association  (1879),  5i 
Vt.  613.  Saunders  v.  Saunders  {1S91).  154  Mass.  337,  338  :  "  In  regard  to  contracts  under  seal 
the  law  has  always  been  that  only  those  who  were  parties  to  them  could  sue  upon  them." 
—Per  Morton,  J.,  citing  Sandersv.  Felley,  12  Pick.  $54;  Johnson  ?•.  Foster,  12  Met.  167  ;  North- 
ampton V.  Elwell,  4  Gray,  Si  ;  Flynn  v.  North  American  Ins.  Co.,  115  Mass.  449  ;  Flynn  v.  Mas- 
sachusetts Benefit  Ass'n,  152  Mass.  288. 

The  same  doctrine  long  prevailed  in  Illinois.  See  Moore  v.  House  (1S72),  64  111.  162. 
"  Where  a  contract  not  under  seal  is  entered  into  by  two  for  the  sole  benefit  of  a  third 
person,  it  appeat-s  to  be  a  [general  principle  that  the  latter  may  sue  thereon  in  his  own  name, 
although  the  agre-'meiit  may  not  be  directly  to  or  with  him.  But  where  the  contract  ij^ 
under  seal,  tlie  rule  seems  to  be  that  a  covenant  can  not  be  sued  upon  by  the  person  for 
whose  benefit  it  is  made  if  he  is  not  a  party  to  the  deed,  but  the  suit  must  be  brought  in  the 
name  of  the  person  with  whom  the  covenant  is  made." 

But  a  recent  Illinois  statute  permits  an  instrument  under  seal  to  be  sued  upon  in  any 
form  of  action  in  which  .such  instrument  might  have  been  sued  upon  if  it  had  not  been  under 
seal;  and  in  consequence  of  this  statutory  change  the  Supreme  Court  of  Illinois  has 
departed  from  the  common  law  doctrine  on  the  point.  The  ratio  decidendi  here  is  suggest- 
ively presented  by  Magruder,  J.,  in  Webster  v.  Fleming  (1899),  178  111.  140,  147:  "While 
it  is  admitted  that  the  parties  for  whose  benefit  a  contract  is  made,  may  sue  thereon  in  their 
own  names,  although  the  agreement  may  not  be  to  or  with  them,  yet  it  is  claimed  that  this 
rule  only  applies  to  simple  contracts,  and  not  to  contracts  under  seal.  The  contention  is, 
that  a  person  for  whose  benefit  a  covenant  in  a  deed  is  made,  can  not  sue  upon  such  a 
covenant,  unless  he  is  a  party  to  the  deed,  but  the  suit  must  be  brought  in  the  name  of  the 
person  with  whom  the  covenant  is  made.  It  was,  however,  expressly  held  in  Dean  v. 
Walker,  107  111.  540,  that  the  rule  is  equally  applicable  whether  the  contract  is  a  contract 
under  seal  or  a  .simple  contract.  In  that  case  we  said  (p.  546) :  '  But  it  is  said  a  third  party 
can  not  bring  an  action  in  his  own  name  on  a  contract  under  seal  between  third  parties  ; 
and  in  support  of  this,  Moore  v.  House,  64  111.  162,  is  cited  and  relied  upon.  In  the  case 
cited  it  was  held  that  a  covenant  can  not  be  sued  upon  by  the  person  for  whose  benefit  it  is 
mac'e,  if  he  is  not  a  party  to  the  d.ed.  In  the  same  case  it  is  also  held  that,  where  a  con- 
tract not  under  seal  is  entered  into  by  two  for  the  benefit  of  a  third  person,  it  is  a  general 
principle  that  the  latter  may  sue  thereon  in  his  own  name,  although  the  a^rreement  may  not 
be  directly  to  or  with  him.  What  is  said  in  relation  to  an  action  on  a  sealed  instrument,  is 
merely  a  reiteration  of  the  common  law  rule  on  that  subject  when  the  case  was  decided, 
but,  since  that  case  was  decided,  the  rule  of  the  common  law  on  that  subject  has  been 
changed  by  section  19,  chapter  no  of  the  Revised  Statutes  of  1874,  page  776,  so  that  now  it  is 
immaterial,  for  the  purpose  of  bringing  the  suit,  whether  the  contract  is  under  seal  or  n  it 
Chitty,  in  his  work  on  Pleading  (vol.  i,  p.  4),  says  :  "  If  the  instrument  be  not  under  seal,  it 
seems  to  be  a  general  principle  that  the  party  for  whose  sole  benefit  it  is  evidently  made, 
may  sue  thereon  in  his  own  name,  although  the  engagement  be  not  directly  to  or  with  him. ' ' 
As  our  statute  has,  therefore,  abolished  the  distinction  between  contracts  under  seal  and 
those  not  under  seal  (except  penal  bonds),  so  far  as  bringing  an  action  on  such  contracts 
is  concerned,  the  law,  as  declared  by  Chitty,  applies  as  well  to  contracts  under  seal,  as  to 
those  not  under  seal.'     .... 

"At  common  law,  only  an  action  of  covenant  or  debt  could  be  brought  upon  a  sealed 
in.strument.  The  rule  that,  when  one  person  covenants  with  another  to  pay  money  to  or 
perform  some  act  for  the  benefit  of  a  third  person  named  in  the  deed,  the  action  must  be 
brought  in  the  name  of  the  covenantee  in  the  deed  and  can  not  be  maintained  by  the  third 
person  in  his  own  name,  even  though  he  is  a  party  in  interest,  and  even  though  it  is 
expressly  stated  to  be  for  his  benefit,  has  its  origin  in  the  nature  of  the  action  of  the  coven- 
ant, inasmuch  as  only  a  party  to  the  instrument  under  seal  can  bring  an  action  of  covenant 
or  debt." 


CLAFLIX   V.    OSTROM.  253 

CLAFLIN  V.   OSTROM. 
Commission  of  Appeals  of  New  York,  January,   1874. 
[54  N.    Y.  581.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court, 
affirming  a  judgment  in  favor  of  the  plaintiffs  entered  upon  the  report 
of  a  referee. 

This  action  was  brought  to  recover  the  amount  of  a  debt  due  the 
plaintiffs  from  the  firm  of  S.  C.  Hanford  &  Co. 

The  facts  appear  sufficiently  in  the  opinion. 

Samuel  Hand,  for  the  appellant. 

Wtn.  P.  Chambers,  for  the  respondent.^ 

Earl,  C. — Prior  to  the  13th  da3^  of  March,  1867,  Thomas  C.  Han- 
ford and  Charles  Ostrom  were  partners  under  the  firm  name  of  T.  C. 
Hanford  &  Co.,  and  the}-  owed  the  plaintiffs  upwards  of  $1,200. 

On  that  day  they  entered  into  a  written  agreement  for  a  dissolution 
of  the  firm.  Hanford  assigned  all  his  interest  in  the  firm  property  to 
his  partner,  Ostrom,  and  the  latter  agreed  to  pa}-  the  firm  debts  men- 
tioned in  the  agreement ;  and  among  those  mentioned  was  the  debt  of 
the  plaintiffs.  The  defendant,  at  the  same  time  and  upon  the  same 
paper,  executed  a  written  guaranty  to  the  said  Hanford,  that  Charles 
Ostrom  would  perform  all  the  conditions  and  covenants  which  were  to 
be  performed  by  him  under  the  agreement.  The  debt  due  the  plaintiffs 
not  haying  been  paid,  they  commenced  this  action,  having  first  taken 
an  assignment  from  Hanford  of  all  his  interest  in  and  claim  under  the 
agreement  of  Charles  Ostrom,  and  the  guaranty  therein  of  the  defend- 
ant. The  referee  sustained  plaintiffs'  right  to  recove-r  upon  the  assign- 
ment to  them  hy  Hanford,  as  well  as  directly  upon  the  guaranty  b}-  the 
defendant  of  the  performance  by  Charles  Ostrom  of  his  promise  to  pay 
plaintiffs'  debt ;  and  if  the  recovery  can  be  sustained  upon  either  ground, 
I  am  of  the  opinion  that  it  can  be  upon  both. 

In  consideration  of  the  transfer  of  the  firm  property  to  Charles  Ostrom 
lie  agreed  to  pay  the  firm  debt  to  the  plaintiffs;  and  this  agreement, 
made  for  their  benefit,  the  plaintiffs  could  adopt  and  enforce  in  their 
own  names,  within  the  principles  laid  down  in  the  following  cases: 
Lawrence  v.  Fox,  20  N.  Y.,  268;  Burr  v.  Beers,  24  N.  Y.,  178;  Tliorp  v. 
Keokuk  Coal  Co.,  48  N.  Y.,  253.  Within  the  same  principles,  the 
plaintiffs  could  bring  suit  directly  against  the  defendant,  who  has 
guaranteed  that  Charles  Ostrom  should  pay  plaintiffs'  debt.  This 
guaranty  must  go  with  the  principal  obligation,  and  be  enforceable  by 
the  same  persons  who  could  enforce  that.  So,  too,  Charles  Ostrom, 
having  failed   to  pay  the  plaintiffs'    debt,  committed  a   breach  of  his 

1  The  arguments  are  omitted. 


254  IN    WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

covenant  with  Hanford,  which  gave  the  latter  a  cause  of  action  against 
him  and  also  against  the  defendant,  his  surety,  and  this  cause  of  action 
he  assigned  to  the  plaintiffs.  Hence,  in  either  or  both  aspects,  the 
plaintiffs'  right  to  recover  was,  upon  facts  thus  far  stated,  quite  clear; 
and  it  only  remains  to  be  inquired  whether  certain  other  facts  which 
appeared  upon  the  trial  ought  to  have  defeated  the  recovery. 

On  the  26th  of  February,  1867,  the  plaintiffs  recovered  judgment 
upon  their  debts  against  T.  C.  Hanford  &  Co.,  and  the  following  day  a 
'levy  was  made  upon  sufficient  property  of  the  firm  to  pay  the  judg- 
ment. After  this,  negotiations  for  the  dissolution  of  the  firm  were 
commenced,  which  resulted  in  the  written  agreement  and  guaranty, 
which  were  executed  March  13th.  Pending  these  negotiations,  and  on 
the  9th  day  of  March,  Charles  Ostrom  paid  plaintiffs  a  small  sum  to 
applj^  upon  their  judgment,  and  gave  them  his  individual  note,  paya- 
ble one  day  after  date,  for  the  balance.  After  the  guaranty  was  executed, 
the  plaintiffs,  relying  upon  that,  at  the  request  of  Charles  Ostrom  and 
the  defendant,  released  their  levy  and  subsequently  canceled  the  judg- 
ment. The  formal  satisfaction  of  this  judgment  did  not  pay  or  extin- 
guish the  firm  debt ;  such  was  not  the  intention  of  the  parties.  The 
judgment  was  a  firm  debt  on  the  13th  day  of  March,  and  the  plaintiffs, 
relying  upon  the  agreement  and  guaranty  that  day  executed,  at  the 
request  of  Charles  Ostrom  and  the  defendant,  released  their  levy  and 
canceled  their  judgment.  By  this  act  of  cancellation  the  firm  debt  was 
not  paid,  and  it  was  not  intended  by  the  parties  that  it  should  in  any 
waj^  be  extinguished.  Aside  from  payment,  there  were  only  two  ways 
to  discharge  the  firm  debt;  one  was  by  a  technical  release  under  seal 
executed  with  the  intent  to  discharge  the  debt.  Here  there  was  no 
such  release.  The  other  was  to  discharge  the  firm  debt  by  substituting 
some  new  agreement  or  obligation,  by  the  consent  of  the  parties,  in 
the  place  of  the  firm  debt,  thus  producing  what  in  the  civil  law  would 
be  called  a  novation.  Here  there  was  no  such  substitution,  unless  it 
was  by  the  individual  note  of  Charles  Ostrom.  This  note  was  given 
on  the  ninth  day  of  March.  The  referee  has  found  upon  abundant 
evidence  that  this  note  was  not  given  in  payment  or  discharge  of  the 
firm  debt  then  in  judgment.  It  is  well  settled  that  the  individual  note 
of  one  or  two  joint  debtors  or  partners  will  not  operate  as  pa^-ment  of 
the  joint  or  partnership  debt,  unless  expressly  received  as  pa3'ment. 
The  individual  note  thus  given  is  treated  the  same  as  if  a  debtor  should 
turn  over  to  his  creditor  the  note  of  a  third  person.-  This  note  was, 
then,  received  as  conditional  payment,  to  operate  as  payment  when 
paid.  The  fact  that  it  was  subsequently  put  into  judgment  by  the 
plaintiffs,  which  remains  unpaid,  can  make  no  difference.  In  all  cases 
where  a  creditor  takes  from  his  debtor  the  note  of  a  third  person,  under 
such  circumstances,  he  may  use  all  lawful  means  to  procure  payment  of 

2  Citing,  New  York  State  Bank  v.  Fletcher,  5  Wend.,  85;  Waydell  v.  lyUer,  3   Denio,  410; 
£ates  V.  Rosekrans,  37  N.  Y.  409. 


HARDESTY    V.    COX.  255 

the  note  by  judgment  or  execution,  or  otherwise;  but  if  in  the  end  he 
fails  to  procure  or  enforce  payment  of  the  note,  his  claim  against  his 
original  debtor  remains,  and  can  be  enforced.  I  can,  therefore,  perceive 
no  reason  to  doubt  that  the  conclusion  of  the  referee  was  right,  and 
the  judgment  should  be  afifirmed,  with  costs. 

All  concur.  Judgment  affir7ned. 


HARDESTY   r.   COX. 

Supreme  Court  of  Kansas,  January  Term,   1894. 

[  53  Kan.  618.] 

Error  from  Ford  District  Court. 

The  opinion  states  the  case. 

Sutton  &  McGany,  for  plaintiff  in  error.^ 

Allen,  J. — The  parties  to  this  action  agreed  that  the  facts  of  the 
case  were  correctly  stated  in  the  petition  and  attached  exhibits.  From 
these,  it  appears  that  W.  H.  Lybrand  and  Perry  Adams  were  partners 
in  operating  a  planing  mill  in  Dodge  City ;  that  the  plaintiff,  R.  J. 
Hardesty,  at  their  request,  became  surety  for  them  on  a  promissory-  note 
for  $1,800,  which  he  was  afterward  compelled  to  pay. 

A  suit  was  brought  by  Adams  to  wind  up  the  partnership  affairs. 
While  this  suit  was  pending,  an  agreement  was  entered  into  by  the 
parties  by  which  all  matters  in  controversy  were  submitted  to  the 
decision  of  arbitrators.  This  agreement  was  in  writing,  and  provided 
that  the  respective  parties  should  "pay  and  do  as  in  said  award  shall 
be  provided."  The  defendant,  Cox,  became  surety  of  lyybrand  for  the 
performance  of  his  part  of  the  agreement.  The  arbitrators  thereupon 
made  an  award  in  writing,  signed  by  all  of  them,  by  the  terms  of  which 
it  was  provided  that  Lybrand  should  take  all  the  property  and  credits 
of  the  firm,  and  should  pay  all  the  partnership  debts,  and  particularly 
the  $1,800  note  above  mentioned.  Lybrand  failed  to  pay  this  note,  and 
this  action  is  brought  by  Hardesty  against  Cox,  as  surety  on  the  arbi- 
tration bond,  to  recover  the  amount  of  money  paid  by  him. 

The  case  was  referred,  tried  on  the  petition  as  an  agreed  statement 
of  facts,  and  a  report  made,  and  this  report  was  confirmed  and  judg- 
ment entered  for  the  defendant.  A  brief  is  filed  by  the  plaintiff  in  error 
only. 

We  are  not  advised,  either  by  the  record  or  counsel  appearing  for  the 
defendant  in  error,  upon  what  view  of  the  case  the  court  held  that  the 
plaintiff  could  not  recover.  The  arbitration  proceedings  appear  to  be 
regular.  Whatever  question  there  may  be  in  other  states,  it  is  settled 
here  that  an  action  can   be  maintained  upon  a   promise  made  by  the 

1  The  argument  is  omitted. 


256  IN   WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

defendant,  for  a  valuable  consideration,  to  a  third  party,  for  the  benefit 
of  the  plaintiff,  although  the  plaintiff  was  not  privj^  to  the  considera- 
tion.' 

The  award  of  the  arbitrators  referred  specificall}-  to  this  note  and 
required  its  payment  by  Lybrand.  There  can  be  no  doubt  as  to  his 
liability,  either  on  the  note  or  under  the  award.  Cox  voluntarily 
became  his  surety  on  the  arbitration  bond.  No  reason  is  apparent  why 
plaintiff  may  not  recover  from  him.  The  judgment  is  reversed,  with 
directions  to  enter  judgment  for  the  amount  of  the  note  sued  on  and 
interest. 

All  the  justices  concurring. 


CHOUTEAU    V.    BOUGHTON. 

Supreme  Court  of  Missouri,  April  Term,   1890. 

[100  Mo.  406.] 

Appeal  from  Stoddard  Circuit  Court. 

Houck  &  Keaton,  for  appellant. 

T.  H.  Majildin,  for  respondent." 

Black,  J. — This  is  an  action  of  trespass  brought  by  Charles  P.  Chou- 
teau against  George  N.  Boughton  to  recover  treble  damages  for  cutting 
and  carrying  away  trees  and  timber  from  the  described  lands  situate 
in  Stoddard  County.  The  trespass  is  alleged  to  have  been  committed 
on  September  i,  1879,  and  at  divers  times  since  that  date.  The  suit 
was  commenced  on  August  14,  1883. 

The  aflSdavit  for  an  attachment,  sued  out  in  aid  of  the  action,  states 
that  the  amount  which  the  plaintiff  ought  to  recover  is  $9,000,  single 
damages,  and  that  he  has  good  reason  to  believe  and  does  believe  that 
the  damages  for  which  the  action  is  brought  are  for  injuries  arising 
from  the  commission  of  some  felony  or  misdemeanor  by  the  defendant, 
as  set  forth  in  the  petition.  To  this  affidavit  the  defendant  filed  a  plea 
in  abatement ;  the  trial  thereon  resulted  in  a  verdict  and  judgment  for 
defendant,  and  the  plaintiff  appealed.  The  errors  assigned  are  :  (i)  The 
exclusion  of  evidence  offered  by  the  plaintiff;  and  (2)  the  giving  of  an 
instruction  which  directed  a  verdict  for  the  defendant. 

The  evidence  shows  that,  on  May  23,  1857,  the  Cairo  &  Fulton  Rail- 
road Compan}^  executed  a  deed  of  trust  to  three  trustees,  namely,  John 
Moore,  John  Wilson,  and  A.  G.  Waterman,  thereby  conveying  to  them 
the  lands  in  question  and  a  large  amount  of  other  lands  and  railroad 
property,  to  secure  the  payment  of  bonds.     Joseph  C.  Moore  and  Geo. 

1  Citing,  Anthony  v.  Herman,  14  Kan.  494;  Harrison  v.  Simpson,  17  id.  50S  ;  Railway  Co. 
V.  Hopkins,  iS  id.  494  ;  Floyd  v.  Ort,  20  id.  162  ;  Life  .Assurance  Society  v.  Welch,  26  id.  632  ; 
strong  V.  Marcy,  33  id.  109  ;  Burton  v.  Larkin,  36  id.  246  ;  Rickinan  v.  Miller,  39  id.  362  ;  Man- 
ufacluring  Co.  v.  Burrows,  40  id.  363. 

2  The  arguments  were  omitted. 


CHOUTEAU   V.    BOUGHTON.  257 

H.  Bridges,  as  administrators  of  G.  M.  Patterson,  E.  O.  Reed,  Henry 
E.  Seelye,  and  Charles  P.  Chouteau,  the  present  plaintiiT,  owned  the 
bonds  and  were  the  only  beneficiaries  in  the  deed  of  trust.  The  deed 
of  trust  contains  a  provision  to  the  effect  that  the  lands  shall  be  deemed 
to  be  in  the  legal  possession  of  the  trustees. 

The  deed  of  trust  was  foreclosed  by  a  decree  entered  in  this  court  in 
October,  1881,  and  the  commissioner  then  appointed  by  this  court  sold 
the  lands  in  question  to  Charles  P.  Chouteau,  who  received  a  deed 
therefore  dated  October  26,  1882.  The  debt  evidenced  by  the  bonds 
amounted  to  over  $4,000,  and  the  sale  of  the  entire  property  specified 
in  the  deed  of  trust  left  a  large  unpaid  balance. 

The  bill  of  exceptions  states  that  plaintiff  offered  in  evidence  a  writ- 
ing whereby  the  administrators  of  Patterson  and  Reed,  and  Seelye 
assigned  to  the  plaintiff  the  right  to  sue  for  and  recover  for  any  and  all 
trespasses  which  had  or  might  be  committed  on  the  lands  in  question, 
which  assignment  was  excluded  by  the  court ;  the  date  of  the  assign- 
ment is  not  stated.  The  plaintiff  then  offered  to  show  by  a  number  of 
witness  that  during  1881  and  1882  the  defendant  sold  to  different  firms 
and  persons  timber  standing  upon  the  lands  ;  that  the  timber  so  sold 
was  cut  and  taken  away,  and  that  defendant  received  and  collected  the 
money  arising  from  such  sales  ;  that  defendant  sold  the  timber,  claim- 
ing to  be  the  agent  of  Thomas  Allen,  but  that  he  had  no  authority 
from  Allen  to  sell  the  same.  The  plaintiff  offered  to  show  further  that 
defendant  endorsed  the  trespassers,  collected  pay  for  the  timber,  and 
shared  in  the  profits  of  cutting  and  carrying  away  trees,  timber,  and 
saw-logs.  All  of  the  foregoing  evidence  was  excluded,  wherefore  the 
court  directed  the  jury  to  find  for  the  defendant. 

I.  One  of  the  objections  made  to  the  assignment  from  Reed  and 
Seelye  and  the  administrators  of  Patterson  to  the  plaintiff,  giving  him 
the  right  to  sue  for  and  collect  damages  arising  from  trespasses  was, 
that  a  right  of  action  arising  from  the  commission  of  a  tort  can  not 
be  assigned.  There  can  be  no  doubt  but  a  cause  of  action  for  damages 
arising  from  a  trespass  upon  real  estate  will  survive  and  pass  to  the 
personal  representatives  of  a  decedent.  R  S.  1879,  sec.  96.  As  the 
cause  of  action  would  survive  to  the  personal  representatives  it  is  assign- 
able, though  based  upon  a  tort.     Snyder  v.  Railroad,  86  Mo.  613. 

Indeed  the  defendant  concedes  in  this  court  that  the  assignment  snould 
not  have  been  excluded  on  the  ground  that  a  cause  of  action  for  such  a 
tort  is  not  assignable. 

But  the  defendant  insists  that  the  assignment  ana  also  the  other  evi- 
dence was  properly  excluded,  because  the  plaintiff  did  not  have  the  title 
to  the  land  until  the  date  of  the  commissioner's  deed,  namely,  October 
26,  1882  ;  and  that  the  cause  of  action  for  trespasses  prior  to  that  date 
accrued  to  the  trustees  in  the  deed  of  trust  and  not  to  the  plaintiff  and 
the  other  bondholders ;  and  hence  they  had  nothing  to  assign  to  him 
and  he  has  no  cau.».e  of  action  through  the  assignment  or  in  his  own 


258  IN   WHOSE   NAME   THE   ACTION   SHOULD    BE    BROUGHT. 

right.  It  was  held  in  Pace  :>.  Pierce,  49  Mo.  393,  that  a  trustee  in  a 
deed  of  trust  upon  personal  property,  given  to  secure  a  debt,  had  the 
right  to  sue  for  and  recover  the  property  even  after  he  had  made  a  sale. 
It  was  considered  that  he  had  the  right  to  recover  the  property  to  the 
end  that  he  might  turn  the  same  over  to  the  purchaser.  And  in  the 
more  recent  case  oi  Lancaster  z:  Insurance  Co..  92  Mo.  460,  the  plaintiff 
held  the  title  to  the  property  covered  by  a  building  as  trustee  of  a 
married  woman,  with  power  to  apply  the  rents  to  her  sole  use,  and  with 
power  to  sell.  We  held  that  the  trustee  could  maintain  a  suit  for 
damages  done  to  the  house,  though  the  suit  was  not  commenced  until 
after  he  had  sold  the  property.  From  these  and  other  cases  the  defend- 
ant insists  that  the  trustees,  and  the  trustees  alone,  can  maintain  this 
action,  and  cites  Myers  v.  Hale,  17  Mo.  App.  205,  which  perhaps  gives 
some  countenance  to  the  claim.  But  it  does  not  follow  because  the 
trustees  could  maintain  this  suit  that  the  beneficiaries  in  the  deed  of 
trust  can  not.  The  practice  act  provides  that  every  action  shall  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  except  as  provided 
in  the  next  section ;  and  that  section  declares  that  a  trustee  of  an 
express  trust  may  sue  in  his  own  name  without  joining  with  him  the 
person  for  whose  benefit  the  suit  is  prosecuted.  The  same  section 
declares  that  a  trustee  of  an  express  trust  shall  be  construed  to  include 
a  person  with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit 
of  another.  Under  these  sections  of  the  statute  it  has  been  held,  on 
several  occasions,  that  where  the  contract  is  made  in  the  name  of  one 
person  for  the  benefit  of  another,  the  suit  may  be  either  in  the  name  of 
the  trustee  or  in  the  name  of  the  beneficiary.     Either  may  sue.' 

A  mortgagee  is  entitled  to  recover  damages  for  permanent  injuries 
done  to  the  mortgaged  land  by  third  persons,  and  until  the  debt  is  paid 
his  right  to  such  damages  is  superior  to  that  of  the  mortgagor,  i  Jones 
on  Mortgages  (4  Ed.)  sec.  695  a.  The  alleged  trespasses  were  committed 
while  the  suit  of  foreclosure  was  pending,  and  were  continued  after  a 
final  decree  had  been  entered  by  the  Supreme  Court,  and  the  property 
did  not  sell  for  enough  to  pay  the  bonds.  The  beneficiaries  are  few  in 
number,  and  are  the  real  parties  in  interest.  A  judgment  on  the  merits 
in  their  suit  or  that  of  their  assignee  would  bar  an  action  by  the  trus- 
tees. It  follows  from  what  has  been  said  that  the  beneficiaries  or  their 
assignee  may  maintain  this  suit,  though  the  trespasses  were  committed 
before  the  date  of  the  commissioner's  deed  to  plaintiff. 

2.  This  much  has  been  said  on  the  questions  before  considered 
because  they  are  the  only  questions  urged  in  defendant's  brief,  and 
because  they  must  arise  on  a  trial  of  this  case  on  its  merits. 

It  is  deemed  proper,  however,  to  say  that  the  only  question  of  fact, 
which  does  or  can  arise  on  the  trial  of  the  plea  in  abatement,  is  whether 
the  damages  sued  for  are  for  injuries  arising  from  the  commission  of 

1  Citing,  Rogers  v.  Gosnell,  51  Mo.  466;  McComas  v.  Ins.  Co.,  56  Mo.  573;  Snider  v.  Ex. 
press  Co.,  77  Mo.  523  ;  Bliss  on  Code  Plead.,  sees.  45  and  46. 


HARVEY   V.    HERRIMAN    &   CURD.  259 

some  felony  or  misdemeanor.  The  merits  of  the  plaintiff's  case  as 
stated  in  his  petition  are  not  the  subject  of  inquiry  on  the  plea  in 
abatement.  On  this  issue  the  assignment  was  irrelevant  and  for  that 
reason  properly  excluded;  but  the  other  excluded  evidence  tended  to 
show  that  the  trespass  was  one  made  a  misdemeanor  by  section  1359, 
Revised  Statutes,  1879,  and  should  have  been  received.  The  judgment 
is  therefore  reversed  and  the  cause  remanded  for  new  trial. 

All  conair. 


HARVEY  LUMBER  COMPANY  v.  HERRIMAN  &  CURD  LUMBER 

COMPANY. 

St.  Louis  Court  of  Appeals,  February  4,  1890. 

[39  Mo.  App.  214.] 

Appeal  from  the  Hannibal  Court  of  Common  Pleas. 

Harriso7i  &  Mahan,  for  the  appellant. 

R.  E.  Anderson,  for  the  respondent.' 

ROMBAUER,  P.  J. — This  suit  is  for  a  balance  of  $135.48  claimed  to  be 
due  upon  a  bill  of  lumber  sold  and  delivered.  The  answer  admits  the 
sale  and  value,  but  avers  a  counter  indebtedness  of  the  plaintiff  to  the 
defendant  to  the  same  extent,  and  claims  a  set-off,  and  judgment  for 
costs.  Upon  the  trial  of  the  cause  before  a  jury,  the  defendant  recov- 
ered a  verdict,  the  judgment  was  entered  accordingly,  from  which  the 
plaintiff  prosecutes  this  appeal. 

The  errors  assigned  are,  that  the  answer  stated  no  valid  set-off,  and 
that  the  court  erred  in  admitting  any  evidence  in  its  support,  and  that 
the  court  erred  in  admitting  illegal  evidence  for  the  defendant,  and 
misdirected  the  jury  in  its  instructions. 

The  answer  of  the  defendant  states,  in  substance,  the  following  facts  : 
That,  heretofore,  J.  M.  True  &  Co.  were  indebted  to  Herriman  and 
others  in  the  sum  of  $451.59  ;  that  this  claim  was  transferred  for  value 
to  the  defendant,  whose  corporate  name  is  the  Herriman  &  Curd  Lum- 
ber Company,  but  which  is  also  known  as  the  Herriman  &  Curd  Com- 
pany ;  that  after  defendant  acquired  such  claim,  the  said  J.  M.  True  & 
Co.  sold  to  the  plaintiff  all  its  stock  in  trade,  and  the  plaintiff  agreed, 
in  consideration  thereof,  to  pay  sundry  debts  of  said  J.  M.  True  &  Co., 
including  the  debt  of  $451.59  due  to  this  defendant ;  that  the  defendant 
demanded  payment  of  such  claim  from  the  plaintiff,  and  the  plaintiff 
did,  prior  to  the  institution  of  this  suit,  pay  to  the  defendant  $316. 11, 
leaving  the  balance  of  $135.48  unpaid,  which  balance  the  defendant 
claims  to  off-set  in  the  present  proceeding. 

The  objection,  which  refers  to  the  sufficiency  of  the  answer,  is  sup- 
ported hy  Ma7tny  et  al.  v.   Frazier's  Adm'n,  29  Mo.  419,  QlU^  Page  v. 

1  The  arguments  are  omitted. 


260  IN  WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

Becker,  31  Mo.  466.  These  cases  hold  that,  upon  a  promise,  made  by 
A  to  B,  to  pay  an  existing  debt  of  B  to  C,  A  is  not  liable  to  C,  but  to 
B  alone ;  that  such  an  agreement,  not  being  tripartite,  is  not  in  the 
nature  of  a  novation,  and  hence  no  privity  of  contract  exists  between 
A  and  C.  That  such  is  the  view  of  the  law  taken  in  those  cases,  may 
readily  be  conceded.  But,  while  they  have  never  been  overruled  in 
express  terms,  they  are  utterly  irreconcilable  with  subsequent  decisions 
of  the  Supreme  Court,  and  must  be  considered  as  overruled. ^ 

This  disposes  of  the  first  assignment  of  error  against  the  appellant. 

There  is  nothing  in  the  plaintiff's  contention,  that  the  Herriman  & 
Curd  Lumber  Company  and  the  Herriman  &  Curd  Company  are  two 
different  corporations,  and  that  the  Herriman  &  Curd  Lumber  Company 
was  never  sued  in  this  action,  but  entered  its  appearance  voluntarily, 
and  could  not  by  so  doing,  give  the  benefit  of  a  claim,  which  it  held 
against  the  plaintiff,  to  another  defendant  who  is  sued.  A  part}-  sued 
by  a  wrong  name  may  appear  to  the  action  by  his  right  name,  and  it  is 
his  AvXy  so  to  do.  Here  it  appears,  from  the  very  inception  of  the  liti- 
gation, that  there  never  was  but  one  corporation,  and  that  its  corporate 
name  was  the  Herriman  &  Curd  Lumber  Company,  although,  right  or 
wrong,  it  sometimes  dropped  the  word  ' '  lumber  ' '  from  its  name  for  the 
sake  of  brevity  or  convenience.  This  appears  not  only  by  the  uncon- 
troverted  evidence,  but  by  many  of  the  original  papers  filed  in  the  case 
by  the  plaintiff  itself,  in  which  the  Herriman  &  Curd  Lumber  Company 
is  named  as  the  sole  defendant.   .   .   .- 

The  paper,  thus  offered  in  evidence,  purported  to  be  a  memorandum 
or  receipt  executed  by  plaintiff  to  J.  M.  True  &  Co.,  reciting  a  number 
of  items  consisting  of  stock  in  trade  and  accounts  as  received  by  plain- 
tiff, and  a  number  of  liabilities  of  J.  M.  True&  Co.  (including  the  claim 
of  Herriman  &  Waples,  which  forms  the  subject  of  the  present  set-off), 
which  apparently  formed  the  consideration  of  the  transfer  to  the  plaintiff. 
The  paper  did  not  purport  to  set  out  the  entire  contract  between  plaintiff 
and  J.  M.  True  &  Co.,  and  the  defendant  proved  by  True  and  another 
witness  that  it  was  only  a  memorandum  forming  part  of  an  oral  contract, 
by  the  terms  of  which  the  plaintiff,  in  consideration  of  the  transfer  of 
these  assets,  agreed  absolutely  to  pay  the  claim  therein  enumerated  in 
full. 

The  plaintiff  claimed  that  the  paper  on  its  face  indicated  that  it  was 
an  assignment  for  the  benefit  of  creditors,  and  that  it  was  chargeable 
only  as  trustee,  with  the  amounts  realized,  and  was  so  chargeable  for 
the  benefit  of  all  the  creditors  of  J.  M.  True  &  Co.,  pro  rata,  and  the 
plaintiff  also  objected  to  the  evidence  of  True,  because  it  tended  to  vary 
and  contradict  the  written  instrument.     There  is  nothing  in  either  of 


1  Citing  Meyer  z/.  lyOwell,  44  Mo.  328  ;  Flannagan  v.  Hutchinson,  47  Mo.  237  ;  Rogers  v.  Gos- 
nell,  51  Mo.  466  ;  s.  c,  58  Mo.  589  :  Cress  ?'.  Blodgets,  64  Mo.  452  ;  Fitzgerald  v.  Barker,  70  Mo. 
687  ;  Amonett  v.  Montague,  75  Mo.  49  ;  Mossman  v.  Bender,  80  Mo.  584. 

2  Part  of  the  opinion,  on  a  question  of  evidence,  is  omitted. 


BEESON 


261 


these  objections.  Where  a  part  only  of  a  contract  has  been  reduced  to 
writing,  oral  evidence  is  always  admissible  to  show  the  residue  of  the 
contract.  O'Neil  v.  Grain,  67  Mo.  250;  Life  Ass'n  v.  Cravcjis,  60  Mo. 
38S.  The  paper,  upon  its  very  face,  was  incomplete  and  unintelligible 
without  proof  of  the  contract  of  which  it  formed  a  part,  and,  under  the 
evidence  before  the  court,  there  was  nothing  which  would  have  justified 
it  to  treat  the  transaction  as  a  general  assignment. 

It  necessarily  follows  that  the  instructions  asked  by,  the  plaintiff,  to 
the  effect  that,  as  a  matter  of  law,  the  defendant  was  not  entitled  to 
recover  on  its  set-off,  and  that  the  transfer  from  J.  M.  True  &  Co. 
to  plaintiff  was  in  the  nature  of  a  general  assignment,  making  the 
plaintiff  chargeable  only  as  trustee,  were  properly  refused. 

There  is  no  error  in  the  record,  and  the  judgment  is  affirmed.  All 
the  judges  concur. 


BEEvSON  :'.   GREEN.  ^ 

Supreme  Court  op  Iowa,  October  21,   1897.  '\LJ^    ^ 

[103  lozc-a,  406.]  ^^    ^  * 

AnH-nn  at  law  on  a.rn"-nnnt  in  n  dped  assuminp-  and  agreeing  to  pay  f  ^ " 

a  inortgage  on   certain   land.     Trial   to  jury.     Judgment   on   verdict /^  ^^ 

directed  for  plaintiff,  and  defendants  appeal.  d    ^ 

J.   W.  Cory,  for  appellants.  fyS-'\ 

C.  M.  Brooks  and   L.  E.  Francis,  for  appellee. 

Ladd,  J. — This  action  is  based  on  a  covenant  in  conveyance  of  a  tract 
of  land  in  Murray  county,  Minn.,  by  William  Deyoe  to  L.  C.  and  M.  D. 
Green,  by  the  terms  of  which  the  grantees  assume  and  agree  to  pay 
certain  mortgages,  including  the  one  sued  on,  executed  by  Deyoe  to 
Adeline  Dwinell,  and  assigned  by  her  to  the  plaintiff.  This  deed  was 
made  and  delivered  to  the  defendants  in  November,  1893,  and  by  them 
immediately  placed  on  record,  and  subsequently  they  sold  and  con- 
veyed the  land.  There  was  no  objection  to  the  deed  until  the  begin- 
ning of  this  action,  more  than  two  years  afterw^ards.  That  the  deed 
was  accepted  is  not  questioned,  nor  could  it  be,  under  such  circum- 
stances. The  defendants  had  made  all  the  use  of  the  instrument  for 
which  it  was  designed.  It  had  served  the  purpose  of  transferring  title 
to  them,  and  had  enabled  them  to  convey  the  estate  to  another.  They 
insist,  however,  that  the  deed  was  made  in  their  absence,  and  that  they 
never  agreed  to  pay  the  mortgage.  But  the  agreement  to  pay  is  in 
writing.  By  accepting  the  deed  they  obligated  themselves  as  effectually 
as  though  they  had  signed  it.^ 

The  terms  of  the  covenant  are  clear  and  unambiguous,  and  oral  evi- 

1  Citing  Crawford  v.  Edwards,  33  Mich.  354;  Huyler's  Executors  v.  Atwood,  26  N.  J.  Eq.  504; 
Spaulding  v.  Hallenbeck,  35  N.  Y.  206  ;  Dock  Co.  v.  Leavitt,  54  N.  Y.  35. 


262  IN   WHOSE   NAME  THE   ACTION  SHOULD   BE   BROUGHT. 

dence  is  not  admissible  to  vary  them.  Authorities  need  not  be  cited  in 
support  of  this  elementary  rule,  but  see  Muhlig  v.  Fiske,  131  Mass. 
no,  where  it  is  said  :  "The  defendant,  having  by  the  delivery,  which 
the  jury  had  found,  accepted  the  deed  of  conveyance,  and  thereby 
obtained  the  estate  which  he  afterwards  conveyed  to  a  third  party,  and 
so  made  himself  liable  to  the  burden  which  by  the  terms  of  the  deed  he 
had  assumed,  could  not  (no  fraud  in  the  execution  or  delivery  of  the 
deed  being  suggested)  impair  the  legal  effect  of  his  own  act  by  oral 
evidence  that  he  never  agreed  to  assume  and  pay  the  mortgage,  nor 
authorized  nor  knew  of  the  insertion  of  such  an  agreement  in  the  deed. 
Such  evidence,  except  so  far  as  it  tends  to  show  that  there  had  been  no 
delivery  of  the  deed,  was  therefore  rightly  excluded,  independently  of 
a  question  of  pleading."  The  appellants  reply  on  Rogers  v.  Castle,  51 
Minn.  428  (53  N.  W.  Rep.  651),  and  Gold  v.  Ogdcn,  61  Minn.  88  (63  N. 
W.  Rep.  266).  These  are  not  in  point,  as  in  each  case  it  is  simply  held 
that  the  grantee  named  took  the  land  as  trustee,  and  did  not  accept 
the  deed  with  the  burden  imposed. 

There  is  no  evidence  tending  to  show  that  any  fraud  was  practiced 
on  the  defendants  to  induce  them  to  take  the  deed,  and  no  excuse  is 
presented  for  doing  so  without  reading  it.  Even  though  contrary  to 
the  previous  contract,  the}?-  accepted  it  as  prepared,  and,  until  reformed, 
are  bound  by  it  as  fully  as  though  drawn  precisely  as  agreed.  This  is 
the  rule  ordinarily  applied  to  written  contracts,  and  finds  support 
directly  in  point  in  Follaiisbee  v.  Johnson,  28  Minn.  311  (9  N.  W.  Rep. 
882),  and  Coolidge  v.  Smith,  129  Mass.  554.  Whether  the  facts  presented 
a  case  for  reformation  of  the  deed  need  not  be  determined,  as  such 
relief  is  not  sought,  and  could  not  be  granted  in  an  action  at  law. 

II.  It  is  insisted  the  defendants  are  not  personally  liable  for  thepay- 
ment  of  the  debt  ""til  f^*^  n-nr.r<-nrnr]rori  p^-r^po^fy  ic-  oyV.o,ic:tQri  A  stranger 
l/j  to  a  contract  mnrip  for  his  benefit  niav  maintain  an  action  thereon. '^ 
'  I  A  mortgage  may  maintain  an  action  nt  law  on  the  covenant  to  pay  in 
the  mortgage  or  on  the  note,^  and  may  thereafter  foreclose  his  mortgage.^ 
It  is  not  perceived  on  what  tenable  grounds  the  same  rules  do  not  apply 
to  a  grantee  in  a  deed  assuming  to  pay  a  mortgage  for  which  the  grantor 
is  personall}^  liable.  Such  grantee  becomes  obligated  for  the  payment 
of  the  debt.*  And  on  foreclosure  personal  judgment  will  be  rendered 
against  him.^  Applying  the  rule  permitting  a  stranger  to  a  contract 
for  whose  benefit  it  was  made  to  enforce  it,  under  the  cited  authorities, 
there  is  no  escape  from  the  conclusion  that  an  action  at  law  ma}'  be 


1  Citing  Mills  v.  Brown,  ii  Iowa,  314  ;  Johnson  v.  Collins,  14  Iowa,  63 ;  Johnson  v.  Knapp 
36  Iowa,  616  ;  McHose  v.  Dutton,  55  Iowa,  728  ;  note  to  I,inneman  v.  Moross,  38  Am.  St.  Rep. 
531  (57  N.  W.  Rep.  103). 

2  Citing  Banta  v.  Wood,  32  Iowa,  469  ;   Brown  v.  Cascaden,  43  Iowa,  103. 
i  Citing  Morrison  v.  Morrison,  38  Iowa,  73. 

<  Citing  Moses  v.  Clerk  of  Court,  12  Iowa,  139;  Wood  v.  Smith,  51  Iowa,  156. 
C  Citing  Corbett  v.  Waterman,  11  Iowa,  86;  Thompson  v.  Bertram,  14  Iowa,  476;  Bowen  v. 
Kurtz,  37  Iowa,  239;  Ross  v.  Kennison,  38  Iowa,  396;  Bank  v.  Mesarvey,  lo-i  Iowa,  285. 


TRIMBLE   :'.    STROTHER.  263 

maintained  against  a  prantee  in  a  deed  on   the  rovenant  assumin'r  the 

payment  ofttie  inortgagTdebt,  without  first  foreclosing  the  mortgage. ' 

**   I "       "  Affirmed. 


TRIMBLE  V.  STROTHER. 
Supreme  Court  of  Ohio,    December  Term,   1874. 
[25  O.  S.  378.] 

Motion  for  leave  to  file  a  petition  in  error,  to  reverse  the  judgment  of 
the  Distfle:L  Court  oi  Van  Wert  County. 

The  defendant  in  error,   Alexander  R.  Strother,  being  a  creditor  of 
the  firm  of  Rockwell,  Long  &  Co.,  sued  Trimble,  the  plaintiff  in  error, 
to  recover  the  amount  due  him  from  Rockwell,  Long  &  Co.     His  cause  fiJ    ^ 
of  action  against  Trimble  is  founded  upon  a  written  agreement,  entered  ^^^^^^         / 
into  between  Trimble  and   Rockwell,  Long  &  Co.,  whereby  the  lormer,  6/**^   ' 
in  consideration  of  the  sale  and  transfer  of  the  firm  assets,  assumed  to      ^Jt^ , 
pay  the  liabilities  of  the  firm. 

The  answer  set  up  two  defences. 

The  substance  of  the  first  defence  is,  that  at  the  time  of  the  making 
of  the  agreement,  and  for  the  purpose  of  inducing  Trimble  to  enter  into 
it,  Rockwell,  Long  &  Co.  made  a  statement  to  him  of  the  persons  to 
whom  thev  were  liable,  and  the  several  amounts  of  such  liabilities  ;  that 
Strother  was  not  among  the  persons  thus  named,  and  that  they  repre- 
sented to  Trimble  that  Strother  held  no  claim  against  them  ;  that  these 
representations  were  false,  and  were  made  with  intent  to  deceive  Trim- 
ble, and  to  induce  him  to  enter  into  the  agreement,  and  that,  relying 
on  the  truth  of  such  representations,  he  was  induced  to  sign  the  agree- 
ment. 

The  second  defence  is,  in  substance,  that  before  Trimble  had  notice 
of  the  claim  of  Strother  against  Rockwell,  Long  &  Co.,  the  agreement 
by  which  Trimble  assumed  to  pay  the  liabilities  of  Rockwell,  Long  & 
Co.  had,  by  the  consent  of  all  the  parties  to  it,  and  upon  certain  consid- 
erations in  the  answer  set  forth,  been  rescinded. 

A  general  demurrer  was  filed  to  the  answer.  The  demurrer  was  sus- 
tained by  the  Court  of  Common  Pleas,  and,  without  further  pleading, 
judgment  was  rendered  on  the  petition. 

On  error  the  judgment  was  affirmed  by  the  District  Court. 
To  reverse  these  judgments,  application  is  now  made  for  leave  to  file 
a  petition  in  error. 

T.  H.   Wiggijts  and  Geddes,  Dickey,  andjenner,  for  the  motion. 
Isaac  N.  Alexander  and  G.  M.  Saltzgaber,  contra.^- 

1  Citing  Burr  v.  Beers,  24  N.  Y.  178;  Follansbee  v.  Johnson,  supra;  Campbell  v.  Smith, 
71  N.  Y.  26. 

2  The  arguments  are  omitted. 


264  IN   WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

White,  J. — We  think  the  court  erred  in  sustaining  the  demurrer  to 
the  answer.  Had  the  error  been  to  the  defences,  separately,  it  should 
have  been  overruled  as  to  both. 

The  plaintiff  brought  his  action  to  recover  a  debt  which  the  defendant 
agreed  with  Rockwell,  Long  &  Co.  to  pay  the  plaintiff.  Before  the 
plaintiff  assented  to  or  acted  on  the  promise  thus  made  in  his  favor, 
the  agreement  had  been  rescinded.  This,  surely,  constituted  a  good 
defence. 

We  do  not  question  the  formefr^ilincrq  nf  ^'hic;  court,  that  a  party  may 
maintain  an  action  on  a  promise  made  for  his  benefit,  althnup^h  the 
considefation  moved  trom  another,  to  whom  the  promise  was  made. 
But  this  rule  must  be  understood  and  applied  with  its  proper  qualifica- 
tions.^ 

The  plaintiff  was  a  creditor  of  Rockwell,  Long  &  Co.  He  had  not 
surrendered  his  claim  against  them,  nor  had  he  assented  to  the  pro- 
visions which  they  had  made  for  its  payment.  He  was  not  bound  to 
accept  it,  and,  until  he  did  so,  there  was  certainly  nothing  to  prevent 
the  parties  to  the  agreement  from  rescinding  it. 

The  plaintiff's  right  rests  solely  on  the  agreement.  He  claims  under 
Rockwell,  Long  &  Co.  Tn  f^iirh  case,  if  he  has  not  been  induced  to 
alter  his  position  by  relying  in  good  faith  on  the  promise  made  in  his 
fafor.  the  defendant  is  not  estopped  from  setting  up  any  defence  whi  ch 
he  could  have  set  up  against  the  enforcement  of  the  promise  by  the  con- 
tracting party . 

Xeave  to  file  the  petition  is  granted;  and  under  section  515  of  the 
code  as  amended  (72  Ohio  L.  173),  all  the  judges  concurring,  the  judg- 
ment of  the  District  Court,  as  well  as  that  of  the  Court  of  the  Common 
Pleas,  is  reversed  ;  the  demurrer  to  the  answer  overruled  ;  and  the 
cause  remanded  for  further  proceedings. 

McIlvaine,  C.  J.;  Welch,  Rex,  and  Gilmore,  JJ.,  concurred. ^ 

1  Citing  Bagley  v.  Waters.  7  Ohio  St.  359  ;  Thompson  v.  Thompson.  4  Ohio  St.  333  ;  Miller 
&  Co.  V.  Florer.  15  Ohio  St.  151  ;  Pike  v.  Brown.  7  Cush.  133  ;  Brewer  v.  Dyer,  id.  337 ;  Millen 
V.  Whipple,  I  Gray,  317  ;  Butterfield  v.  Hartshorn,  7  N.  H.  345  ;  Owen  v.  Bowen.  4  Car.  &  P.  93. 

2  See  also,  Crowellv.  Hospital  of  St.  Barnabas  (1876),  27  N.  J.  Eq.,  650.  Amonettv.  Higgins 
(1882),  80  Ky.,  409,  417;  Biddle  v.  Brizzolara  (1883),  64  Cal.  354,  363;  Berkshire  Life  Ins.  Co.  v. 
Hutchings  (18S4),  100  Ind.  496:  "Where  A.,  the  gran'ee  of  B.,  agrees  to  pay  B.'s  mortgage 
debt  to  C.  as  part  of  the  purchase  money  of  the  land,  A.  does  not  thereby  become  the 
debtor  of  C,  but  there  must  be  some  act  of  adoption  by  C.  to  entitle  him  to  the  benefit  of 
A.'s  contract;  and  if,  before  such  adopti  n,  A.  and  B.  resc  nd  their  contract,  there  is  nothing 
left  for  C.  except  his  original  claim  against  B.,  and  in  a  suit  to  foreclose  his  mortgage  he  is 
not  entitled  to  a  personil  judgment  against  A." 

In  Brewer  v.  Mauer  (1883),  38  O.  S.  543.  M.  held  the  notes  of  B.  secured  by  a  mortgage  on 
his  land.  B  conveyed  the  land  to  a  married  w^oman,  by  deed  of  general  warranty,  in  con- 
sideration of  a  sum  of  money  paid,  and  of  her  accepting  a  deed  in  which  "said  grantee 
assumes  ...  as  part  of  the  purchase  money,"  said  mortgage  debt.  This  was  the  only 
separate  property  she  possessed.  She  conveyed  the  land  to  one  French,  and  he  conveyed 
to  the  defendants  by  like  deeds,  each  containing  a  stipulation  in  favor  of  their  grantors 
that  the  grantees  assumed  and  agreed  to  pay  the  mortgage  debt  as  part  of  the  purchase 
money.  Upon  foreclosure  and  sale,  the  proceeds  were  insuffieient  to  pay  the  mortgage 
debt.  The  mortgagee  sued  to  recover  the  balance  from  French's  gra:  tees.  Their  answer 
alleged  "that  since  said  24th  day  of  December,  A.  D.  1S75,  when  said  deed  containing  said 


NEW    YORK    LIFE    INSURANCE    CO.    V.    AITKIN.  265 


NEW  YORK  LIFE  INSURANCE  COMPANY  v.  AITKIN. 
Court  of  Appeals  of  New  York,  February  24,  1891. 

[125  N.  Y.  660.] 

Appeal  from  a  judg-ment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  entered  upon  an  order  overruling  plaintiff 's 
exceptions  and  directing  a  judgment  for  the  defendant  upon  a  verdict 
directed  b}'  the  court,  said  exceptions  having  been  ordered  to  be  heard 
in  the  first-instance  by  the  General  Term. 

On  December  3,  1868,  Phoebe  T.  Drew  and  John  G.  Drew,  her  hus- 
band, of  Elizabeth,  New  Jersey,  executed  their  bond  conditioned  for 
the  payment  to  the  plaintiff  of  $4,000,  one  year  from  the  date  thereof, 
and  as  collateral  security  therefor,  at  the  same  time,  executed  to  the 
plaintiff,  the  New  York  Life  Insurance  Company,  a  mortgage  on  certain 
premises  in  Elizabeth,  New  Jersey.  On  December  15,  1869,  Mrs.  Drew 
and  her  husband  conveyed  the  mortgaged  premises  to  John  Gregg  by 
a  deed  in  which  the  grantee  covenanted  and  agreed  to  pay  the  mortgage 
above  mentioned.  On  December  28,  1870,  Gregg  and  his  wife  conveyed 
the  mortgaged  premises  to  Helen  E.  Aitkin  by  a  deed  which  contained 
an  assumption  clause  in  the  following  words: 

"And  this  conveyance  is  made  subject  nevertheless  to  the  lien  of  a  certain 
mortgage  made  and  executed  by  the  said  party  of  the  first  part  to  the  New  York 
Life  Insurance  Company,  bearing  date  the  3rd  day  of  December,  1868,  to  secure 
the  sum  of  four  thousand  (4,000)  dollars,  lawful  money  of  the  United  States, 
with  interest  thereon,  which  mortgage,  forming  a  part  of  the  consideration 
money  hereinbefore  expressed  and  having  been  deducted  therefrom,  the  said 
party  of  the  second  part  hereby  assumes  and  undertakes  to  pay  and  indemnify 
and  to  save  said  party  of  the  first  part  harmless  therefrom. " 

Mrs.  Aitkin  entered  into  possession  of  the  premises  so  conveyed  and 
remained  in  possession  as  owner  thereof  until  May,  1873,  when  she 
conveyed  them  to  Aaron  H.  Rathbone  by  deed,  in  which  he  assumed 
payment  of  the  mortgage.     Mrs.  Aitkin  and  her  husband  moved  to  the 

covenant  was  executed  and  delivered,  the  said  L.  B.  French,  the  grantor  of  these  defend- 
ants, and  in  whose  deed  said  covenant  is  contained,  for  a  good  and  valuable  consideration 
has  released  and  discharged  these  defendants  of  and  from  any  and  all  liability  to  him,  the 
said  French,  on  account  of  the  aforesaid  covenant,  and  that  thereby  the  defendants  are 
wholly  discharged  and  released  therefrom,  and  that  plaintiff,  by  reason  thereof,  can  not 
have  and  maintain  his  aforesaid  action  against  these  defendants."  Said  the  Court,  per 
Johnson,  J.,  "Giving  this  answer  a  liberal  interpretation  instead  of  a  technical  one,  we 
think  it  a  sufficient  plea  of  a  release,  and,  therefore,  the  demurrer  of  the  plaintiff  below 
should  have  been  overruled.  No  such  release  after  the  rights  of  the  mortgage  had  become 
fixed,  would  operate  as  a  discharge.  The  contract  for  the  benefit  of  the  mortgagee  was 
one  which  he  could  avail  himself  of  or  not,  at  his  election,  but  until  he  had  done  some 
act  which  fixed  his  right,  it  was  competent  for  the  parties  thereto,  in  good  faith,  and  for  a 
valuable  consideration,  to  rescind  or  cancel  it." — £d. 


266  IN   WHOSE    NAME   THE   ACTION   SHOULD    BE    BROUGHT. 

city  of  New  York  in  1873  or  1874,  and  she  died  there  in  1875.  She  left 
a  will  in  which  her  husband,  the  defendant,  was  named  executor.  The 
will  was  admitted  to  probate  in  the  city  of  New  York  and  letters  testa- 
mentary thereon  were  issued  to  the  defendant. 

In  September,  1879,  the  plaintiff  filed  a  bill  in  the  Court  of  Chancery 
in  New  Jersey  to  foreclose  the  mortgage  and  named  as  parties  defendant 
in  that  suit  Phoebe  T.  Drew,  John  G.  Drew,  John  Gregg,  Helen  B.  Ait- 
kin, James  Aitkin,  Aaron  H.  Rathbone,  and  Mrs.  Aaron  H.  Rathbone. 

The  bill  alleged  the  making  of  the  bond  and  mortgage  by  Drew  and 
the  conveyance  of  the  mortgaged  premises  to  Gregg  and  his  assump- 
tion of  the  mortgage ;  the  conveyance  by  Gregg  to  Helen  E.  Aitkin 
and  her  assumption  of  the  mortgage  ;  the  conveyance  by  Helen  E.  Ait- 
kin to  Aaron  H.  Rathbone  and  his  assumption  of  the  mortgage.  It 
alleged  default  in  paj'ment  of  the  mortgage  and  prayed  for  the  fore- 
closure of  it  and  for  payment  of  any  deficiency  arising  on  the  sale  by 
Phoebe  T.  Drew,  John  G.  Drew,  John  Gregg,  Helen  E.  Aitkin,  and 
Aaron  H.  Rathbone.  Phoebe  T.  Drew,  John  G.  Drew,  and  John  Gregg 
were  personally  served  with  process  within  the  state  of  New  Jersey, 
and  the  other  defendants,  who  resided  in  the  state  of  New  York,  by 
publication  and  mailing.  The  bill  was  taken  as  confessed  on  February 
20,  1880  ;  on  March  5th,  1880,  there  was  a  decree  of  foreclosure  and  sale 
and  a  decree  for  the  payment  of  the  deficiency  by  the  defendants  against 
whom  it  was  asked.  The  mortgaged  premises  were  sold  on  ]\Iarch  26, 
1880,  and  resulted  in  a  deficiency  of  $1,590.80. 

On  September  28,  1888,  a  few  days  before  the  commencement  of  this 
action,  the  defendant  procured  from  John  Gregg  a  release  from  the 
covenant  of  assumption  contained  in  the  deed  to  Helen  E.  Aitkin  in 
the  following  language : 

"  For  and  in  consideration  of  one  dollar  lawful  money  of  the  United  States 
of  America  to  me  in  hand  paid  by  James  Aitkin,  as  executor  of  the  last  will  and 
testament  of  Helen  E.  Aitkin,  deceased.  I  hereby  release  and  discharge  the  said 
James  Aitkin,  as  executor  as  aforesaid,  of  and  from  any  liability  to  me  for, 
because,  or  by  reason  of  the  assumption  by  the  said  Helen  E.  Aitkin  and  her 
undertaking  to  pay  a  certain  mortgage  of  four  thousand  dollars  to  the  New  York 
Life  Insurance  Company,  dated  December  3,  1868,  with  interest,  contained  in  a 
certain  deed  bearing  date  the  28th  day  of  December,  A.  D.  1S70,  made  by  me 
and  my  wife  Phoebe  (now  deceased)  to  said  Helen  E.  Aitkin  and  recorded  in 
the  office  of  the  clerk  of  Union  County  in  Book  42  of  Deeds  on  page  452,  etc., 
in  the  state  of  New  Jersey. 

"  Witness  my  hand  and  seal,  dated  September  28,  1888. 

•'John  Gregg.     (  L.  S.)" 

This  action  was  commenced  on  the  covenant  of  assumption  contained 
in  the  deed  from  Gregg  to  Mrs.  Aitkin,  on  the  nth  day  of  October, 
1888,  to  recover  the  balance  due  upon  the  bond  and  mortgage.  The 
material  facts  set  out  were  alleged  in  the  complaint,  and  the  amount 


NEW   YORK    IJFE    INSURANCE    CO.    7'.    AITKIN.  267 

claimed   was   $1,590.80,   with    interest  from  March  5,  18S0,  which  was 
alleged  to  be  the  deficiency  upon   the  New  Jersey  foreclosure  of  the- 
mortgage. 

The  defendant  in  his  answer  put  in  issue  all  the  material  allegations 
of  the  complaint,  and  alleged  several  defences  as  follows  :  (i)  That  at 
the  time  of  the  deed  to  her,  Mrs.  Aitkin,  she  was  a  married  woman,  and 
that  she  was  not,  by  the  laws  of  New  Jersey,  personally  bound  by  her 
covenant  of  assumption.  (2)  That  he  had  no  notice  of  the  New  Jersey 
foreclosure  suit,  and  that  neither  he  nor  his  wife  was  made  a  party 
thereto.  (3)  That  he  was  discharged  from  any  liability  by  reason  of  the 
release  executed  to  him  by  John  Gregg.  (4)  That  no  leave  of  the  court 
was  obtained  by  the  plaintiff  to  bring  the  action  before  the  commence- 
ment thereof.  (5)  That  the  action  was  barred  by  the  New  Jersey  Stat- 
ute of  Limitations. 

The  action  was  brought  to  trial,  and  the  facts  above  stated  and  other 
facts  were  proved.  At  the  close  of  the  evidence  on  both  sides,  the 
plaintiff  moved  for  the  direction  of  a  verdict  in  its  favor  for  the  amount 
claimed,  with  interest ;  the  defendant  moved  for  the  direction  of  a  ver- 
dict in  his  favor.  The  trial  judge  denied  the  plaintiff's  and  granted  the 
defendant's  motion,  and  directed  the  plaintiff's  exceptions  to  be  heard 
at  the  General  Term  in  the  first  instance,  and  that  the  entry  of  judg- 
ment be  in  the  meantime  suspended. 

Henry  G.  Atwater,  for  appellant. 

Edward  IV.  Scudder  Johnston,  for  respondent.^ 

Earl,  J. — The  record  discloses  that  the  plaintiff  was  defeated  at  the 
Circuit,  and  the  verdict  there  ordered  in  favor  of  the  defendant  upon 
the  sole  ground  that  he  was,  by  the  release  executed  to  him  b}'  Gregg, 
absolutely  discharged  from  the  covenant  of  assumption  made  by  his 
wife,  the  testatrix ;  and  the  effect  of  the  release  is,  therefore,  the  first 
matter  now  to  be  considered. 

If  the  question  is  to  be  governed  by  the  law  of  this  state,  it  is  entirely 
clear  that  the  release  did  not  discharge  the  defendant.  The  covenant  of 
assumption  had,  long  before  the  release,  come  to  the  notice  of  the 
plaintiff,  and  it  had  adopted  and  acted  thereon.  Having  no  notice  of 
the  death  of  Mrs.  Aitkin,  it  commenced  the  action  for  the  foreclosure  of 
the  mortgage  in  the  state  of  New  Jersey,  and  inserted  her  name  in  the 
process  and  complaint  as  a  party,  and  prosecuted  the  action  to  judgment 
upon  the  assumption  that  she  had  been  made  a  proper  party  thereto. 
In  the  complaint  in  that  action  the  covenant  of  assumption  was  alleged, 
and  a  deficiency  judgment  w^as  prayed  against  Mrs.  Aitkin  and  others. 
"Whatever  may  be  the  effect  of  those  foreclosure  proceedings,  \h^y  were 
at  least  competent  to  show  that  the  plaintiff  adopted  and  relied  upon 
the  covenant  of  assumption  made  by  Mrs.  Aitkin.  After  that  covenant 
had  thus  come  to  the  attention  of  the  plaintiff,  and  had  been  adopted 
b}^  it,  Gregg,  the  covenantee,  could  not  release  her  or  her  estate  from 

1  The  arguments  are  omitted. 


268  IN  whose;  name  the  action  should  be  brought. 

the  obligation  of  the  covenant,  and  so  the  law  must  be  deemed  to  be 
•  final!}-  settled  in  this  state.  Gifford  v.  Corrigan,  105  N.  Y.  223  ;  S.  C. 
117  id.  257 ;  Watkins  v.  Reynolds,  123  N.  Y.  211.  Therefore,  if  the  law 
of  this  state  governs,  the  release  was  not  operative  to  bar  this  action. 

But  we  reach  the  same  conclusion  if,  as  contended  by  the  defendant, 
the  effect  of  the  release  is  to  be  determined  by  the  law  of  New  Jersey. 
There  the  courts  hold  that  a  covenant  by  a  grantee  of  mortgaged  prem- 
ises, contained  in  the  deed  to  him,  to  assume  and  pay  the  mortgage 
debt,  is  a  contract  with  his  grantor  only  for  the  indemnity  of  the  latter, 
and  may  be  released  and  discharged  by  him;  and  generally  that  where 
parties  have  made  a  contract  which  will,  either  directly  or  indirectly, 
benefit  a  mere  stranger,  they  may  at  their  pleasure  abandon  it  and 
mutually  release  each  other  from  its  performance,  regardless  of  the 
stranger's  interest,  unless  the  parties,  with  knowledge  that  he  is  rely- 
ing on  the  contract,  suffer  him  to  put  himself  in  a  position  from  which 
he  can  not  retreat  without  loss  in  case  the  contract  be  not  performed, 
and  that  then  he  may  ask  to  have  the  contract  performed  so  far  as  it 
touches  his  interest.  They  hold  that  the  mortgagee  in  such  a  case 
may  enforce  the  covenant  of  assumption  in  equity,  on  the  principles  of 
equitable  subrogation,  thus  appropriating  a  security  which  the  mort- 
gagor has  obtained  from  his  grantee  for  the  benefit  of  the  mortgage ; 
and  the  rule  there  seems  to  be  that  the  covenant  can  only  be  enforced 
in  equity.  But  the  courts  there  have  held  further  that  a  release  of  a 
grantee's  assumption  of  a  mortgage  debt,  given  by  an  insolvent  grantor, 
without  consideration,  and  for  the  sole  and  admitted  purpose  of  defeat- 
ing the  mortgagee's  claim  in  equitj'^  for  a  deficiencj-,  is  void  in  equitj^ ; 
that  the  release  to  be  operative  must  be  given  in  good  faith  and  for  a 
valuable  consideration,  and  not  for  the  sole  purpose  of  defeating  the 
claim  of  the  mortgagee.  The  following  authorities  were  proved  upon 
the  trial  and  are  ample  to  sustain. the  views  just  expressed.  Cromwell 
V.  Currier,  27  N.  J.  Eq.  152  ;  Trustees  v.  Anderson,  30  id.  366 ;  Youngs 
V.  Trustees,  31  id.  290;  O'Neill  v.  Clark,  33  id.  444 

But  the  defendant  makes  the  further  claim  that  according  to  New 
Jersey  law,  his  liability  upon  this  assumption  clause  could,  in  any 
event,  be  enforced  onlj'  in  an  equitable  action,  and  possibly  in  an  action 
to  foreclose  a  mortgage  to  which  he  had  in  some  way  been  made  a 
proper  party.  But  this  is  a  matter  of  mere  form,  not  of  substance,  and 
relates  to  procedure ;  and  the  procedure  in  an  action  in  this  State  must 
be  governed  bj'  the  laws  of  this  state ;  and  by  our  law  an  action  at  law 
may  be  maintained  upon  such  a  covenant. 

It  is  further  said  that  in  New  Jersey  the  plaintiff  could  only  assail 
the  release  by  alleging  the  fraud,  and  thus  tendering  an  issue  upon 
the  question  of  its  fraudulent  execution.  This  is  again  matter  of  pro- 
cedure to  be  regulated  by  the  practice  in  this  state.  No  notice  is  taken 
of  the  release  in  the  complaint,  and  at  the  time  of  the  service  thereof  it 
is  probably  true  that  the  plaintiff  had  no  knowledge  of  the  release.     It  is 


NEW    YORK    LIFE   INSURANCE   CO.    Z'.    AITKIN.  269 

set  up  in  the  answer,  but  not  as  a  counterclaim.  It  was,  therefore,  not 
necessary  for  the  plaintiff  to  reply  to  the  answer,  and  it  was  entitled  to 
meet  the  answer  by  any  competent  evidence  to  defeat  or  avoid  its  allega- 
tions. If  the  defendant  had  desired  a  distinct  issue  upon  the  release, 
he  could  have  procured  one  under  Section  516  of  the  Code  of  Civil  Pro- 
cedure by  a  motion  to  the  court  for  a  direction  to  the  plaintiff  to  reply 
to  the  new  matter.  A  still  further  answer  to  this  objection,  although 
not  so  fundamental,  is  that  no  question,  as  to  the  pleading  in  reference 
to  this  matter,  was  raised  at  the  trial. 

We  are,  therefore,  of  the  opinion  that  the  courts  below  erred  in  hold- 
ing, upon  the  facts  proved  in  this  case,  that  the  release  furnished  a 

defence  to  the  action ' 

Judgment  reversed.- 

1  Part  of  the  opinion,  on  other  questions,  is  omitted. 

2  "Of  course,  it  is  difficult,  if  not  impossible,  to  reason  about  it  [the  effect  of  a  release 
by  the  grantor  of  a  covenant  by  his  grantee  to  pay  a  mortgage  on  the  land  conveyed] 
without  recurring  to  Lawrence  v.  Fox,  20  N.  Y.  26S,  and  ascertaining  the  principle  upon 
which  its  doctrine  is  founded.  That  is  a  difficult  task  especially  for  one  whose  doubts  are 
only  dissi;  ated  by  its  authority,  and  becomes  more  difficult  when  the  number  and  variety 
of  its  alleged  fovnidations  are  considered.  But  whichever  of  them  may  ultimately  prevail, 
I  am  convinced  that  they  all  involve,  as  a  logical  consequence,  the  irrevocable  character  of 
the  contract  after  the  creditor  has  accepted  and  adopted  it,  and  in  some  manner  acted  upon 
xty—Per  Finch,  J.,  in  Gifford  v.  Corrigan  (1889),  117  N.  Y.  257,  262.  (s.  C.  IVilliston's  Cases 
on  Contracts,  .S35.) 

And  see  Rogers  v.  Gosnell  (1875),  58  Mo.  589,  591:  "It  is  a  presumption  of  law  that  when 
a  promise  is  made  for  the  benefit  of  a  third  person  he  accepts  it,  and  to  overthrow  this  pre- 
sumption a  dissent  must  be  shown." — Per  Wagner,  J. 

Bassett  v.  Hughes  (1877),  43  Wis.  319,  321;  (s.  c.  Williston's  Cases  on  Contracts,  541):  "  It  is 
quite  immaterial,  if  the  defendant's  covenant  to  pay  his  father's  debts,  was  afterwards 
rescinded  by  mutual  agreement  between  the  parties  to  it.  Before  that  was  done,  the 
plaintiffs  had  been  informed  of  the  covenant,  and  made  no  objection  thereto;  indeed  the 
fair  inference  from  the  testimony  is,  that  the  plaintiffs  fully  assented  thereto.  Whether  it 
was  or  was  not  competent  for  the  parties  to  the  covenant  to  rescind  it  before  such  notice  to 
and  assent  by  the  plaintiffs,  we  need  not  here  determine.  Certainly,  after  ,';uch  notice  and 
assent,  the  covenant  could  not  be  rescinded  to  the  prejudice  of  the  plaintiffs,  without  their 
consent,"— /'<?>- 1, yon,  J. 

See  also  Carnahan  v.  Tousey  (1883),  93  Ind.  561,  564;  Watkins  v.  Reynolds  (1S90),  123  N. 
Y.  211. 

Compare  Smith  v.  Flack  (1883),  95  Ind.  116,  120:  "  It  is  true,  as  asserted  by  the  appellants, 
that  the  parties  to  the  agreement  had  the  right  to  rescind  at  any  time  before  the  promise 
of  Hammons  had  been  accepted  by  the  persons  in  whose  favor  it  was  made.  If  the  con- 
tract in  this  case  was  so  rescinded,  the  rescission  would  have  constituted  a  good  defence  to 
the  action,  but  in  order  to  make  it  available  as  a  defence,  it  was  necessary  for  the  appellants 
to  have  specially  pleaded  it  by  way  of  answer.  Davis  v.  Calloway,  30  Ind.  112.  The 
appellee  was  not  required  to  aver  in  his  complaint  that  the  contract  had  not  been  rescinded, 
as  the  legal  presumption  existed  that  it  was  still  in  force." — Per  Colerick,  J. — Ed. 


270  IX   WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 


CLARK  V.  HOWARD. 

Court  of  Appeals  of  New  York,  October  6,   1896. 

[150  N.   Y.  232.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  revers- 
ing a  judgment  in  favor  of  plaintiff  entered  vipon  the  report  of  a  referee 
and  granting  a  new  trial. 

This  action  was  brought  to  recover  $2,800  originally  owing  b}'  Francis 
D.  Ho3't  to  the  plaintiff,  which,  plaintiff  alleged,  the  defendants  by  an 
instrument  in  writing  had  agreed  to  pay. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Marcus  T.  Hun,  for  appellant. 

Esek  Cowcfi,  for  respondents.  1 

O'Brien,  J. — This  case  depends  upon  the  construction  which  should 
be  given  to  the  written  contract  upon  which  the  plaintiff  brought  the 
action  and  recovered  before  the  referee.  The  General  Term  has  taken  a 
different  view  with  respect  to  the  meaning  and  effect  of  the  paper,  and 
reversed  the  judgment. 

There  is  no  dispute  with  respect  to  the  fact  that  Francis  D.  Hoyt  was 
indebted  to  the  plaintiff  in  the  amount  of  the  judgment.  The  question 
is  whether  the  defendants  have  ever  become  bound  to  pay  that  debt. 

On  the  2ist  of  August,  1868,  Hoyt  was  also  indebted  to  the  defend- 
ants, composing  a  mercantile  firm  engaged  in  business  at  Providence 
and  in  New  York,  in  the  sum  of  $13,510.89,  and  on  that  day  he  executed 
and  delivered  to  them  a  written  instrument  reciting  the  indebtedness 
and  the  consideration  thereof,  and  stating  that  for  the  purpose  of  secur- 
ing and  paying  this  debt,  Hoyt  had  on  that  day  sold,  assigned,  and 
delivered  to  them  all  his  stock  of  goods,  books,  accounts,  bills  receiva- 
ble, and  fixtures  in  his  business  in  New  York,  as  per  bill  of  sale  that 
day  executed  and  delivered  to  the  defendants.  The  paper  then  con- 
cluded with  the  following  provision,  upon  which  the  plaintiff  brings 
this  action  : 

And  whereas,  the  party  of  the'first  part  is  justly  indebted  to  Mrs.  Abby  Rogers 
Clark  in  the  sum  of  twenty-eight  hundred  dollars  for  money  loaned,  and  to 
Edward  W.  Davenport  in  the  sum  of  twenty-five  hundred  dollars  for  money 
loaned. 

Now,  in  consideration  of  the  premises  and  the  sum  of  one  dollar  paid  to  the 
party  of  the  first  part  by  the  parties  of  the  second  part,  the  parties  of  the  second 
part  hereby  agree  to  guarantee  to  the  said  Abby  Rogers  Clark  and  Edward  W. 
Davenport  the  payment  to  them  and  each  of  them  of  the  said  sums  of  money  so 
owing  to  them  as  aforesaid,  wit^Nn  five  years  from  the  date  thereof,  with  interest. 

1  The  arguments  are  omitted. 


CI.AKK    :■.     HOWARD.  27 1 

The  defendants  admit  the  execution  and  delivery  of  this  agreement, 
but  deny  that  there  was  any  sufficient  consideration  therefor  and  for  a 
further  defence  allege  that  Hoyt  falsely  and  fraudulently  represented 
that  the  goods  so  transferred  were  of  sufficient  value  to  pay  their  debt 
and  also  that  of  the  plaintiff  and  the  other  party  named  in  the  instru- 
ment ;  that  in  sole  reliance  upon  such  representations  and  statements 
the  defendants  accepted  the  transfer ;  and  that  such  statements  were 
untrue.  The  referee  found  that  by  an  inventory  and  appraisal  of  the 
goods  so  transferred,  made  by  the  parties  shortly  after  the  transfer,  the 
value  thereof  appeared  to  be  between  $14,000  and  $15,000;  and  after 
numerous  other  findings  he  held  as  a  conclusion  of  law  that  the  defend- 
ants, imder  the  circumstances  of  the  case,  and  by  the  terms  of  the 
instrument,  promised  absolutely  to  pay  the  plaintiff's  debt  within  five 
years.  The  view  of  the  General  Term  was  substantially  that  since 
there  was  no  privity  of  contract  or  consideration  between  the  plaintiff 
and  the  defendants,  the  clause  of  the  contract  quoted  amounted  to 
nothing  more  than  a  promise  on  the  part  of  the  defendants  to  lend  to 
Hoyt  money  with  which  to  pay  the  plaintiff's  debt  against  him,  and 
that  the  plaintiff"  was  not  entitled  to  sue  upon  such  a  promise. 

It  is  quite  evident  from  what  appears  in  the  record  that  this  point 
was  first  suggested  on  appeal,  and  that  the  case  was  tried  upon  a  differ- 
ent theory.  The  defendants'  understanding  and  construction  of  the 
instrument  is  thus  stated  by  them  in  their  answer.  After  stating  the 
fraudulent  representations  as  to  the  value  of  the  property  transferred, 
made  by  Ho3't,  the  answer  avers : 

"That  relying  solely  upon  the  said  representations  so  as  aforesaid  made,  and, 
believing  them  to  be  true,  the  defendants  agreed  to  accept  a  transfer  of  and  to 
take  possession  of  said  property,  and,  and  to  dispose  of  the  same  to  the  best 
advantage,  and  out  of  the  proceeds  to  repay  the  indebtedness  of  said  Hoyt  to 
the  defendant  and  to  use  any  surplus  in  paying  the  alleged  indebtedness  of  said 
Hoyt  to  the  plaintiff  and  said  Davenport." 

The  defendants  themselves  by  their  answer  have  thus  given  to  the 
contract  an  interpretation  quite  different  from  that  now  claimed.  The 
issue  which  w^as  litigated  at  the  trial  was  substantially  one  of  fact, 
founded  upon  the  defence  of  fraud,  and  which  the  referee  decided 
adversely  to  the  defendants.  In  anticipation  of  this  result,  apparently, 
the  defendants  requested  the  referee  to  hold  as  matter  of  law  that  they 
received  the  property  and  its  proceeds  as  trustees  for  the  purpose  of 
disposing  of  the  same  and  out  of  the  proceeds  to  pa}-  their  own  claim 
and  that  of  the  plaintiff"  and  Davenport  pro  rata,  and  that  plaintiff's 
prorata  share  of  the  proceeds  with  interest,  amounting  to  $2,004.20, 
was  the  sum  for  which  the  plaintiff"  was  entitled  to  judgment. 

The  referee  refused  so  to  hold  and  held  as  alread}-  stated,  that  the 
plaintiff  was  entitled  to  recover  the  whole  debt  as  upon  an  absolute 
promise  to  pay,  made  by  defendants  to  the  plaintiff  or  for  her  benefit. 


272  IN   WHOSE   NAME   THE    ACTION   SHOULD    BE   BROUGHT. 

At  the  request  of  the  defendants  the  referee  found  as  matter  of  fact  that 
the  transfer  of  the  property  by  Hoyt  to  the  defendants  was  made  for  the 
purpose  and  with  the  intent  that  the  same  should  be  sold  to  the-  best 
advantage  and  the  proceeds  applied  to  the  payment  of  the  indebtedness 
of  said  Hoyt  to  the  defendants  and  the  plaintiffs  and  said  Davenport  as 
and  in  the  manner  mentioned  in  said  agreement.  It  is  quite  apparent 
from  the  answer  and  the  whole  course  of  the  trial  that  the  theory  upon 
which  the  defendants  succeeded  at  the  General  Term  was  not  the  theory 
upon  which  they  rested  their  defence  at  the  trial.  But  the  defendants 
were  entitled  in  the  court  below,  and  are  entitled  here,  to  urge  any 
ground  of  defence  that  is  fairly  presented  by  the  record.  It  does  not 
follow  that  because  the  defendants  met  with  a  larger  measure  of  success 
at  the  General  Term  than  they  even  claimed  before  the  referee  that  they 
are  wrong  in  the  position  which  they  now  assume.  The  legal  liability 
of  the  defendants  for  the  payment  of  the  plaintiff's  debt  against  Hoyt, 
upon  the  facts  and  circumstances  found  by  the  referee,  is  still  open  to 
debate  in  this  court. 

The  plaintiff  was  not  a  party  to  this  agreement  and  did  not  even 
know  of  its  existence  until  some  time  after  it  was  made.  There  was  no 
consideration  for  the  promise  moving  from  the  plaintiff  to  the  defend- 
ants, and  the  plaintiff  neither  w^aived  nor  released  any  right  or  claim 
that  she  had  against  Hoyt,  her  original  debtor.  There  is  no  question 
in  the  case  with  respect  to  the  Statute  of  Frauds,  since  the  defendants' 
promise,  whatever  its  legal  character  may  be,  is  in  writing  signed  by 
the  parties  to  be  charged. 

The  common  debtor  of  the  three  creditors  named  in  the  instrument 
transferred  and  delivered  all  his  property  to  the  defendants,  and  in  con- 
sideration of  such  transfer  the  defendants  bound  themselves  according  to 
the  tenor  and  meaning  of  the  writing.  The  defendants  received  all  that 
the  debtor  had  for  distribution  among  his  creditors,  and  in  consideration 
thereof,  among  other  things,  agreed  to  guarantee  to  the  plaintiff  the 
payment  to  her  within  five  years  of  her  debt.  Whatever  the  defendants 
boiind  themselves  to  do  in  this  writing  was,  therefore,  as  between  the 
parties  to  it,  founded  upon  a  sufficient  consideration.  If  the  writing, 
construed  in  the  light  of  all  the  surrounding  circumstances,  imports  a 
promise  on  the  part  of  the  defendants  to  pay  the  plaintiff"  the  amount 
of  her  debt  against  the  common  debtor,  in  consideration  of  the  transfer 
by  the  latter  to  the  defendants  of  all  his  property,  the  plaintiff"  may 
maintain  an  action  on  this  promise,  though  she  was  not  privy  to  the 
contract  or  consideration.  It  is  then  the  case  of  a  promise  made  by  the 
defendants,  upon  a  valid  consideration,  to  a  third  person  for  the  plaint- 
iff's benefit.  Lawrence  v.  Fox,  20  N.  Y.  268  ;  Burr  v.  Beers,  24  N.  Y. 
178.  Where  a  debtor  transfers  property  to  a  third  person  in  considera- 
tion of  his  promise  to  pay  the  debt  tp  the  creditor,  the  latter  may 
accept  and  adopt  the  promise  when  it  becomes  known  to  him  and  main- 
tain an  action  upon  it.     When  the  promise  in  such  cases  is  the  consid- 


CLARK    V.    HOWARD.  273 

eration  or  condition  npon  which  the  third  party  has  received  the  debtor's 
property,  he  thereby  makes  the  debt  his  own  and  assumes  an  inde- 
pendent duty  of  payment,  irrespective  of  the  liability  of  the  principal 
or  original  debtor.'  It  appears  that  the  plaintiff,  some  time  before  the 
commencement  of  the  action,  demanded  payment  of  the  debt  from  the 
defendant,  so  that  there  can  be  no  question  as  to  the  acceptance  or  adop- 
tion of  the  promise. 

It  becomes  important,  therefore,  to  determine  whether  the  promise 
contained  in  the  instrument  is,  in  fact,  an  original  and  absolute  one  to 
pay  the  debt  or  collateral  merely.  That  must  depend  upon  the  inten- 
tion of  the  parties,  to  be  ascertained  from  the  language  used  and  from 
all  the  surrounding  circumstances.  The  findings  of  the  referee,  when 
read  together  and  considered  in  the  light  of  what  is  to  be  fairly  implied, 
as  well  as  what  is  expressed,  import  that  the  defendants,  by  this  instru- 
ment, intended  to  and  did  promise  to  pay  the  plaintiff's  debt  abso- 
lutely. This  conclusion  is  necessarily  involved  in  the  findings,  if  not 
expressly  found  in  terms,  and  we  may  consider  all  the  facts  found  and 
the  evidence  in  the  record,  in  order  to  give  the  decision  its  proper  force 
and  construction.     Ogdcn  v.  Alexander,  140  N.  Y.  356. 

The  judgment  of  the  referee  has  been  reversed  upon  the  ground  that 
the  instrument,  when  considered  with  the  other  facts  and  circumstances 
of  the  case,  found  or  conceded,  creates  no  legal  liability  against  the 
defendants  for  which  the  plaintiff  can  maintain  an  action.  We  are  not 
inclined  to  agree  to  this  view  of  the  case.  The  character  of  the  defend- 
ants'  promise  is  not  to  be  determined  solely  with  reference  to  the  lan- 
guage employed.  Words  to  the  effect  that  a  third  party  will  see  the 
debt  paid,  or  become  responsible  or  the  like,  have  been  held  to  import 
an  original  and  absolute  promise  when  taken  in  connection  with  the 
facts  and  circumstances  of  the  transaction. ^ 

It  is  true  that  the  meaning  of  such  words,  whether  imputing  an  orig- 
inal or  collateral  promise,  has  been  discussed  mostly  in  cases  w^here 
the  Statute  of  Frauds  has  been  relied  upon  as  a  defence,  still  the  same 
principle  will  apply  in  any  case  where  it  is  material  to  determine 
whether  a  promise  is  original  or  not.  If  the  defendants  intended  to 
and  did  make  this  debt  their  own  by  a  promise  founded  upon  a  new  and 
original  consideration  of  benefit  to  the  defendants,  moving  to  them  from 
the  debtor,  the  fact  that  the  debt  may  still  subsist  against  the  original 
debtor  is  no  objection  to  a  recovery.^  The  true  construction  of  the 
whole  transaction  is  that  the  original  debtor  put  a  fund  or  property  into 
the  hands  of  the  defendants  by  absolute  transfer  vipon  their  promise  to 

1  Citing,  F.  Nat.  Bank  v.  Chalmers,  144  N.  Y.  432  ;  White  v.  Rintoul,  108  N.  Y.  222 :  Town- 
send  V.  Rackham,  143  N.  Y.  516;  Gifford  v.  Corrigan,  117  N.  Y.  257  ;  Wager  v.  I,ink,  134  N. 
Y.  122. 

2  Citing,  Chase  v.  Day,  17  Johns.  114;  Mountstephen  v.  Lakeman,  I,.  R.  (7  Eng.  &  Ir. 
App.)  17. 

^Citing,  Leonard  v.  Vreedenburgh,  S  Johns.  29  ;  Farley  v.  Cleveland,  4  Cowen,  432;  Mal- 
lory  -'.  Gillett,  21  N.  Y.  412. 


274  IN   WHOSE    NAME    THE   ACTION   SHOULD    BE    BROUGHT. 

pa}-  the  plaintiff's  debt  with  others  ;  and,  although  the  plaintiff  was  not 
a  party  to  the  transaction,  it  was  for  her  benefit,  and  as  the  promise  is 
founded  upon  a  new  and  independent  consideration  she  may  enforce  it 
within  the  doctrine  of  the  cases  cited.  The  facts  found  or  conceded 
show  that  such  was  the  transaction,  and  that  the  purpose  of  the  paper 
in  question  was  to  assume  the  payment  of  the  plaintiff's  debt  in  the 
manner  stated  therein. 

In  the  first  place  we  have  the  fact  that  the  defendants  executed  the 
paper  in  the  belief  that  the  property  transferred  to  them  by  the  debtor 
was  sufficient  to  pay  their  own  debt,  and  also  that  of  the  other  parties 
named.  This  clearly  appears  from  the  averments  of  their  answers.  It 
is  equally  clear  that  the  defendants  were  informed  by  the  debtor  that 
the  plaintiff's  debt  was  one  of  honor,  which  he  was  bound  to  protect, 
since  it  was  for  money  borrowed  by  him,  and  that  he  refused  to  make 
the  transfer  except  upon  the  condition  that  the  defendants  should  bind 
themselves  to  take  care  of  this  debt.  It  appears  also  that  when  the 
propert}'  was  put  into  the  possession  of  the  defendants  they  employed 
the  debtor  to  carry  on  the  business  as  their  agent,  furnishing  him  with 
other  goods,  and  that  the  business  was  so  conducted  for  some  time  after 
the  transfer.  The  defendants,  no  doubt,  believed  that  if  the  property 
transferred  should  prove  in  any  degree  insufiicient,  the  balance  would 
be  made  up  from  the  earnings  of  the  business,  and  in  any  event  they 
had  five  years  within  which  to  pay  the  debt.  The  language  of  the 
instrument  when  coupled  with  the  facts  and  circumstances  referred  to, 
does  not,  we  think,  give  much  support  to  the  theory  which  prevailed 
in  the  court  below,  that  the  defendants'  promise  imported  nothing  more 
than  an  agreement  on  their  part  with  the  debtor,  and  for  his  benefit 
alone,  to  advance  to  him  money  with  which  he  might  pay  the  debt  in 
question.  We  think  they  virtually  assumed  it  themselves  upon  the 
transfer  bj^  the  debtor  of  all  his  property  to  them.  The  theory  that  the 
defendants'  obligation  was  simplj'  to  advance  money  to  Ho3't  to  enable 
him  to  pay  the  plaintiff's  debt  is  sought  to  be  supported  by  artificial 
reasoning  and  judicial  authority,  but  it  is  not  the  natural  legal  infer- 
ence to  be  drawn  from  the  transaction.  The  cases  in  which  such  a  prin- 
ciple was  sanctioned  arose  upon  facts  quite  different  from  these  appear- 
ing in  this  record.     Garnsey  v.  Rogers,  47  N.  Y.  233. ^ 

There  would,  no  doubt,  be  great  difficulty  in  holding  the  defendants 
liable  to  the  plaintiff  if  the  proposition  of  their  counsel  that  the  promise 
was  collateral,  importing  nothing  more  than  that  Hoj't,  the  debtor, 
would  pay  the  debt  within  five  years,  could  be  admitted.  Everything 
in  the  record  tends  to  show  that  such  was  not  the  intention  of  the 
parties  to  the  agreement.  Neither  Hoyt  nor  the  defendants  understood 
the  promise  in  that  way.  They  expected  that  the  property  transferred 
to  the  defendants  would  enable  them  to  pay  all  the  debts  referred  to, 

1  Given  in  text,  infra. 


CLAKK    7'.    HOWARD.  JiO 

and  upon  that  basis  the  promise  must  have  been  intended  to  be  abso- 
lute. To  hold  that,  under  the  circumstances,  the  defendants  intended 
nothing  more  than  a  collateral  guaranty  that  Hoyt,  after  being  stripped 
of  all  he  had,  would  pay  the  debt  within  five  years,  would  be  to  impute 
to  them  dishonesty  in  seeking  to  retain  for  themselves  the  property  of 
their  debtor,  in  excess  of  their  debt.  The  reasonable  and  natural  con- 
clusion from  all  the  facts  is  that  the  defendants  intended  to  pay  this 
debt  to  the  plaintiff  out  of  the  property  of  the  debtor  which  they 
received,  and  so  bound  theiuselves.  That  was  the  condition  upon 
which  the  debtor  made  the  transfer. 

The  nature  of  the  defendants'  undertaking  is  not  affected  by  the  fact 
that  less  was  realized  from  the  property  than  was  expected  when  the 
transfer  was  made.  The  intention  of  all  the  parties  to  the  writing  is 
to  be  ascertained  from  the  facts,  existing  at  the  time  it  was  made,  or 
the  situation  as  they  then  understood  it,  not  by  what  took  place  or  was 
disclosed  afterwards.  If  the  defendants  supposed  that  they  were  receiv- 
ing property  from  the  debtor  to  pay  not  only  their  own  debts,  but  also 
that  of  the  plaintiff  and  the  other  creditor  named,  the  conclusion  is 
inevitable  that  they  intended  to  bind  themselves  to  pay  these  debts. 
That  they  did  so  understand  the  situation  at  the  time  that  they  made 
the  promise,  clearly  appears  from  the  record.  The  fact  that  in  the 
writing  the  defendants  agreed  to  guarantee  the  payment  to  the  plaintiff, 
instead  of  agreeing  to  pay,  does  not  control  the  interpretation  of  the 
contract.  The  intention  of  the  parties  and  the  scope  and  meaning  of 
the  promise  is  to  be  ascertained  from  the  nature  of  the  transaction  and 
all  the  attending  facts  and  circumstances  as  well  as  the  written  words. 

Our  conclusion  is  that  the  promise  should  be  interpreted  as  an  abso- 
lute one  on  the  part  of  the  defendants  to  pay  the  plaintiff's  debt ;  that 
it  is  supported  by  a  sufficient  consideration  moving  from  the  debtor  to 
them,  namely,  the  transfer  of  his  property  for  that  purpose,  and  that 
the  legal  conclusion  of  the  referee  was  correct. 

It  follows  that  the  order  and  judgment  appealed  from  should  be 
reversed  and  the  judgment  entered  upon  the  report  of  the  referee 
affirmed,  with  costs  in  all  courts. 

All  concur.  Ordered  accordingly. 


276  IN   WHOSE    NAME   THE   ACTION   SHOUI,D    BE   BROUGHT. 


2.    The  limitatiojis  which  attach  to  the  third  person's  right  of  action, 
in  case  of  a  contract  between  others  for  his  benefit. 

Note. — The  "broad  principle  that  if  one  person  makes  a  promise  to  another  for  the 
benefit  of  a  third  person,  this  third  person  may  maintain  an  action  on  the  promise,"  while 
assented  to  without  restriction  in  many  cases,  is  limited  and  qualified  in  many  others;  and 
even  when  the  opinion  leaves  the  doctrine  quite  at  large,  the  facts  of  the  case  in  hand  often 
warrant  a  material  restriction.  Just  where  the  line  should  be  drawn  is  however  not  j-et 
defined;  in  several  of  its  aspects  the  ratio  decidendi  is  still  open  to  question.  The  restrictions 
which  attach  to  contractual  relations  in  general  are,  of  course,  to  h-  observed.  Cf.Hows- 
ma7i  V.  Trenton  Water  Co.  (1893),  119  Mo.  304,  given  in  the  text,  infra.  It  is  equally  clear 
that  whatever  right  of  action  the  third  person  has  because  of  his  contract,  that  right  "can 
not  be  broader  than  that  which  the  party  to  the  contract,  through  whom  the  right  of  action 
is  derived,  would  have  in  the  event  of  its  breach."  The  outside  beneficiary  "can  not 
acquire  a  better  standing  to  enforce  the  agreement  than  that  occupied  by  the  contracting 
parties  themselves."  Ellis  v.  Harrison  (1891),  104  Mo.  270,  277.  But  very  many  cases  which 
turn  upon  the  third  person's  right  of  action,  in  case  of  a  contract  between  others  for  his 
benefit,  require  further  and  more  special  limitations. 

(a)  Is  it  sufficient  that  the  performance  of  a  contract,  valid  between  its  parties,  would 
certainly  result  in  a  material  benefit  to  the  third  person;  or  must  his  benefit  appear  as  the 
direct  aim  and  purpose  of  the  contract  ? 

(b)  Is  it  sufficient  if  a  valid  contract  and  an  intended  benefit  to  the  third  person  appear;  or 
must  the  promisee  in  the  contract  be  under  som?  legal  or  equitable  obligation,  within  the 
scope  of  the  contract,  to  the  third  person  for  whose  benefit  the  contract  is  made? 

These  two  aspects  are  often  blended  in  the  same  case,  but  for  the  sake  of  clearness  of 
view  they  will  be  presented  under  separate  heads. 


(A)    The  Benefit  of  the   Third  Persoti  as  the  Purpose  of  the  Co7itj^acti7ig 

Parties. 

GARNSEY  V.  ROGERS  ET  AL. 

Court  of  Appeals  of  New  York,  January,  1872. 

[47  A^.  y.  233.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court 
reversing  a  judgment  upon  the  report  of  a  referee  in  favor  of  the 
plaintiff. 

On  and  prior  to  the  23rd  of  January,  1S61,  the  plaintiff,  Lewis  R. 
Garnsey,  was  the  owner  of  two  mortgages  upon  the  property  described 
in  the  complaint,  one  given  to  him  directly,  the  other  acquired  by  him 
through  purchase  and  assignment  from  its  original  mortgagee.  At  the 
date  mentioned,  the  premises  covered  by  these  mortgages  were  owned 
by  the  defendant  Richard  INI.  Hermance,  who  had  assumed  and  agreed 
to  pay  them.  At  this  time  they  amounted  together  to  the  sum  of 
$2,000,  besides  an  accumulation  of  interest. 

On  the  23rd  of  January,  1861,  Hermance  was  indebted  to  the  defend- 
ant Harvey  J.  Rogers,  in  the  sum  of  $650.  To  secure  the  payment  of 
this  sum,  Hermance  executed  and  delivered  to  Rogers  a  deed  of  the 


CARNSEY   v.    ROGERS   ET    AL.  277 

premises  covered  by  the  mortgages,  containing  a  covenant  on  the  part  of 
Rogers  that  he  would  assume  and  pay  the  said  mortgages.  This  deed 
was  given,  however,  upon  the  parol  condition  that  whenever  Hermance 
should  pay  the  said  $650  and  interest  to  Rogers,  the  premises  should  be 
reconveyed  by  him  to  Hermance. 

On  the  ist  of  August,  1866,  Hermance  gave  Rogers  his  note  for  $700, 
and  on  the  same  day  Rogers  reconveyed  the  premises  to  Hermance  by 
deed,  in  which  Hermance  covenanted  to  reassume  and  pay  these  mort- 
gages. 

Upon  these  facts  the  referee  found,  as  a  conclusion  of  law,  that  in 
case  the  amount  of  the  mortgages  could  not  be  collected  from  a  sale  of 
the  land  itself,  nor  from  the  defendant  Hermance,  then  and  in  that  case 
the  defendant  Rogers  was  liable  for  the  same.  To  this  conclusion  the 
defendant  Rogers  excepted. 

Upon  the  report  of  the  referee  judgment  was  entered,  charging  the 
defendant  Harvey  J.  Rogers  with  any  deficiency  which  might  arise 
upon  the  sale  of  the  mortgaged  premises,  in  case  such  deficiency  could 
not  be  collected  of  the  defendant  Hermance.  From  this  portion  of  the 
judgment  the  defendant  Rogers  appealed. 
IV.  F.  Odell,  for  appellant. 

E.  Coiuen,  for  respondent.' 

Rapallo,  J. — The  liability  of  a  grantee  who  accepts  a  conveyance  by 
the  terms  of  which  he  assumes  the  payment  of  an  existing  mortgage 
upon  the  land,  to  respond  directly  to  the  mortgagee  for  a  deficiency,  in 
case  of  a  foreclosure  and  sale,  was  first  adjudged  in  this  state  in  the 
csise  of  //alsey  v.  Reed  [1842],  9  Paige,  445.  That  adjudication  was 
followed  in  the  cases  of  Marsh  v.  Pike,  10  Paige,  597  ;  Cornell  v.  Pres- 
cott,  2  Barb.,  S.  C,  16;  Blyer  v.  Monholla7id,  2  Sandf.  Ch.,  478,  and 
other  cases.  In  these  cases,  the  sole  ground  upon  which  the  liability 
of  the  grantee  was  placed,  was  that  as  between  the  grantor  and  the 
grantee,  the  grantee,  by  such  an  agreement,  became  the  principal 
debtor  of  the  mortgage  debt,  and  the  grantor  stood  in  the  situation  of 
surety  for  him.  That  the  agreement  of  the  purchaser  was  given  for  the 
indemnity  of  the  vendor,  who  thus  stood  in  the  relation  of  surety  for 
him,  and  that  the  mortgage  creditor  was  entitled  to  the  benefit  of  such 
indemnity,  upon  the  principle  that  where  a  surety  or  person  standing 
in  the  situation  of  surety  for  the  payment  of  a  debt,  receives  a  secu- 
rity for  his  indemnity  and  to  discharge  such  indebtedness,  the 
principal  creditor  is  in  equity  entitled  to  the  full  benefit  of  that  security, 
though  he  did  not  even  know  of  its  existence.  Curtis  v.  Tyler,  g 
Paige,  432. 

In  Ki7ig  V.  Whitely  [1843],  10  Paige,  465,  this  was  declared  to  be  the 
principle  of  all  the  cases  in  which  it  was  held  that  such  a  stipulation 
inured  to  the  benefit  of  the  mortgagee ;  and  consequently  it  was  held  in 

1  The  ar 'umeiits  are  omitted. 


278  IN   WHOSE   NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

that  case  that  when  the  grantor,  in  whose  conveyance  such  a  stipula- 
tion was  contained,  was  not  himself  personally  liable  for  the  mortgage 
debt,  the  holder  of  the  mortgage  acquired  no  right  to  resort  to  the 
grantee  for  payment. 

In  the  last  case  cited,  the  chancellor  distinctly  repudiates  the  idea  of 
any  right  being  acquired  by  the  holder  of  the  mortgage,  in  case  of  such 
agreement,  on  the  ground  that  it  was  a  contract  made  between  the 
grantor  and  the  grantee,  for  the  benefit  of  the  mortgagee.  And  he 
refers  to  the  older  English  cases  which  were  cited  in  support  of  the 
doctrine,  that  if  one  person  makes  a  promise  to  another,  for  the  benefit 
of  a  third,  that  third  person  may  maintain  an  action  on  the  promise, 
and  shows  that  that  principle  applies  only  to  third  persons  for 
whose  special  benefit  the  promise  was  intended,  and  that  they  rest 
upon  the  ground  that  the  person  obtaining  the  promise,  and  from 
whom  the  consideration  proceeded,  intended  it  for  the  benefit  of  the 
third  person. 

The  case  of  Russell  v.  Porter,  3  Seld.  171,  recognizes  the  ground  of 
liability  to  be  that  stated  by  the  chancellor,  and  in  the  case  of  Trotter  v. 
Hughes,  2  Ker.  74,  the  doctrine  of  King  v.  Whitely  was  adopted  ;  and 
it  was  accordingly  held  that  although  accepting  a  deed,  containing  such 
a  stipulation,  from  a  party  personally  liable  to  pay  the  mortgage,  ren- 
dered the  grantee  liable  to  the  mortgagee,  yet  the  assumption  of  the 
mortgage,  in  a  deed  from  a  party  not  liable  to  pay  it,  did  not  make  the 
grantee  liable,  inasmuch  as  the  onl}-  ground  of  liability  was  that  of 
equitable  subrogation  of  the  creditor  to  all  securities  held  by  the  surety 
of  the  principal  debtor  ;  and  the  grantor  w-ho  was  not  personall}-  liable 
for  the  mortgage  debt  did  not  stand  in  the  situation  of  surety.  Such 
was,  in  all  the  cases  upon  the  subject,  recognized  as  the  sole  ground  of 
liability  until  the  case  of  Burr  v.  Beers  [1861],  24  N.  Y.  178,  which 
was  an  action  at  law,  in  which  the  mortgagee  had  recovered  a  personal 
judgment  for  the  mortgage  debt,  against  a  grantee  who  had  accepted 
a  deed  containing  the  usual  clause  whereby  he  assumed  the  payment  of 
a  mortgage  which  was  a  lien  upon  the  premises.  Denio,  J.,  in  deliv- 
ering the  opinion  of  the  court,  after  referring  to  the  previous  cases 
upon  the  subject,  agrees  that  they  do  not  proceed  upon  the  notion  of  a 
contract  between  the  owner  of  the  equity  of  redemption  and  the  holder 
of  the  mortgage,  but  upon  the  principle  that  the  undertaking  of  the 
grantee  to  pay  off  the  incumbrance  is  a  collateral  security  obtained  by 
the  mortgagor,  which  inures,  by  an  equitable  subrogation,  to  the  benefit 
of  the  mortgagee,  and  that  the  judgment  under  review  could  not  be 
sustained  on  the  doctrine  of  those  cases,  the  action  not  being  for  a  fore- 
closure of  the  mortgage,  and  the  mortgagor  not  being  a  party.  But 
upon  the  authority  of  Lawrence  v.  Fox,  20  N.  Y.  268,  the  judgment 
was  sustained  on  the  broad  principle  that  if  one  person  make  a  promise 
to  another  for  the  benefit  of  a  third  person,  that  third  person  may 
sustain  an  action  upon  the  promise. 


GARNSEV    7'.    ROGERS    ICT    AL.  •  279 

The  application  of  that  principle  made  in  the  case  of  Lawre?ice  v.  Fox 
lias  been  the  subject  of  much  discussion,  which  it  is  not  proposed  to 
renew  here.  The  case  of  Burr  v.  Beers,  though  in  conflict  with  Mullen 
V.  Whipple,  I  Gra}-.  317,  and  apparently,  in  conflict  with  King  v. 
Whitely,  10  Paige,  465,  and  Trotter  v.  Hughes,  2  Ker.  74,  may  well  be 
sustained  for  the  reasons  mentioned  by  Chancellor  Kent,  in  Cumberlafid 
V.  Codringlon,  3  Johns.  Ch.  254,  258,  261,  where  he  intimates  that  a 
special  agreement  betw^een  the  purchaser  and  seller  of  the  equity  of 
redemption,  by  which  the  amount  of  the  mortgage  debt  is  considered 
as  .so  much  money  left  in  the  hands  of  the  purchaser  for  the  use  of  the 
mortgagee,  would  be  sufiicient  ground  for  a  suit  at  law  by  the  mort- 
gagee. 

The  cases  to  which  reference  has  been  made  exhibit,  I  believe,  every 
ground  upon  which  it  has  been  hitherto  claimed  that  a  grantee  who,  by 
agreement  with  his  grantor,  assumes  the  paj'ment  of  an  existing  mort- 
gage on  the  premises  conveyed,  becomes  personally  liable  to  the  mort- 
gagee ;  and  the  material  question  now  to  be  considered  is,  whether  the 
principles  of  any  of  these  cases  apply  to  such  an  agreement  when  con- 
tained, not  in  an  absolute  conveyance,  but  in  a  mortgage,  or  in  a  con- 
veyance which  in  equity  amounts  onl}^  to  a  mortgage,  and  impose 
upon  the  second  mortgagee  making  such  an  agreement,  an  absolute, 
continuing,  personal  liability,  which  can  be  enforced  by  the  first  mort- 
gagee against  the  second. 

The  conveyance  from  Hermance  to  Rogers  is  found  by  the  referee  to 
have  been  intended  only  as  a  securit}-  for  an  existing  debt,  and  accom- 
panied by  an  agreement  for  redemption,  and  must  in  equity  be  treated 
as  a  mortgage  and  nothing  more.  The  covenant  therein,  whereb}' 
Rogers  assumed  the  payment  of  the  prior  mortgages  held  by  the 
plaintiff",  should  therefore  be  construed  as  if  contained  in  a  mortgage. 
It  having  been  established,  b}-  repeated  adjudications,  that  a  deed, 
though  absolute  on  its  face,  ma3'  be  proved  by  parol  to  have  been  given 
as  security  for  a  debt,  and  that  when  that  fact  is  established  it  is  defeasi- 
ble by  redemption,  and  vests  in  the  grantee  only  the  rights  of  a  mort- 
gagee, consistency  requires  that  the  character  thus  given  to  the  instru- 
ment should  afi'ect  all  its  parts,  and  that  the  obligations  which  it  pur- 
ports to  impose  upon  the  grantee  should  have  no  greater  effect  than  if 
the  defeasance  which  is  proved  by  parol  had  been  incorporated  in  the 
instrument ;  especially  when  third  parties  claim  equitable  rights  under 
such  covenants. 

Assuming  for  the  moment  that  in  such  a  case  the  agreement  of  the 
grantee  or  mortgagee  to  pa\'  off  prior  incumbrances  is  founded  upon  a 
sufficient  consideration,  it  is  still  difficult  to  see  how  it  can  be  brought 
within  the  principle  of  the  earlier  cases  cited,  they  being  all  founded 
upon  the  doctrine  that  as  between  the  grantor  and  grantee  the  latter 
becomes  the  principal  debtor  for  the  mortgage  debt,  which  has  been 


280  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

allowed  him  out  of  the  purchase  money.  Where  he  takes  only  a  mort- 
gage he  owes  no  money  for  the  land,  which  he  can  promise  to  pay  to 
the  prior  mortgagee,  for  he  does  not  acquire  title  to  the  land.  To 
become  a  debtor  to  any  one  he  must  owe  a  debt.  Where  he  buys  the 
land  absolutely  for  a  stipulated  price,  and  instead  of  paying  the  whole 
of  it  to  his  grantor,  he  is  allowed  to  retain  a  part  which  he  agrees  to 
pay  to  a  creditor  of  the  grantor  having  a  lien  upon  the  land,  the 
amount  which  he  thus  agrees  to  pay  is  his  own  debt,  which  by  arrange- 
ment with  his  grantor  he  has  agreed  to  pay  to  the  creditor  of  the  latter, 
and  although  this  arrangement,  not  being  assented  to  by  the  creditor, 
does  not  discharge  the  grantee  from  liabilit}',  yet  as  between  him  and 
the  party  who  has  thus  assumed  it,  the  grantor  is  a  mere  surety.  If 
the  grantee  pays  it,  he  pays  only  what  he  agreed  to  pay  for  the  land, 
and  pa^-s  it  in  the  manner  agreed  upon.  And  there  is  no  hardship  in 
allowing  either  the  grantor  or  the  mortgagee  to  enforce  its  payment. 
But  in  the  case  of  a  party  having  the  land  merely  as  security,  such  an 
undertaking  is  simply  a  promise  to  advance  money  to  pay  the  debt  of 
his  grantor  or  mortgagor,  which  money  when  advanced  the  junior 
mortgagee  can  collect  under  his  mortgage.  Westerfi  Insurance  Co.  v. 
Village  of  Buffalo,  i  Paige,  284.  If  Rogers  had  paid  the  lien  in  ques- 
tion, and  on  a  foreclosure  of  his  own  mortgage  the  premises  had  not 
brought  enough  to  satisfy  it  together  with  the  sum  paid  by  him  to 
discharge  the  prior  liens,  Hermance  would  have  been  liable  to  him  for 
the  deficiency. 

Where  a  party,  taking  from  his  debtor  a  lien  on  property  subject  to 
prior  liens,  assumes  and  pays  them  off  he  is  certainly  entitled  to  add 
the  amounts  so  paid  to  his  original  debt  ;  the^ payments,  though  made 
in  pursuance  of  his  agreement,  are  made  for  the  benefit  of  the  debtor, 
and  upon  his  debts  and  to  protect  him  and  his  property.  It  is  obvious 
that  an  agreement  of  this  character  is  a  mere  agreement  to  advance, 
and  not  a  security  in  the  hands  of  the  grantor  as  suret3%  available  to 
the  parties  in  whose  favor  the  prior  liens  exist,  on  the  ground  of  equit- 
able subrogation. 

The  judgment  can  not  be  sustained  on  the  principles  which  prevailed 
prior  to  the  case  of  Btirrv.  Beers,  24  N.  Y.  178,  and  the  next  inquiry 
is  whether  it  can  be  sustained  on  the  doctrine  of  that  case. 

Was  this  a  promise  made  to  Hermance  for  the  benefit  of  the  plaintiff? 
I  do  not  understand  that  the  case  of  Lawrence  v.  Fox  has  gone  so  far 
as  to  hold  that  every  promise  made  by  one  person  to  another,  from  the 
performance  of  which  a  third  would  derive  a  benefit,  gives  a  right  of 
action  to  such  third  party,  he  being  privy  neither  to  the  contract  nor 
the  consideration.  To  entitle  him  to  an  action,  the  contract  must  have 
been  made  for  his  benefit.  He  must  be  the  party  intended  to  be  bene- 
fited ;  and  all  that  the  case  of  Lawrence  v.  Fox  decides  is,  that  where 
one  person  loans  money  to  another,  upon  his  promise  to  pay  it  to  a  third 


GAKNSEY    V.    ROGERS   KT   AL.  281 

party  to  whom  the  party  so  lending  the  money  is  indebted,  the  contract 
thus  made  by  the  lender  is  made  for  the  benefit  of  his  creditor,  and  the 
latter  can  maintain  an  action  upon  it  without  proving  an  express 
promise  to  himself  from  the  party  receiving  the  money.  Johnson,  C.  J., 
and  Denio,  J.,  placed  their  votes  upon  the  distinct  ground  that  the 
contract  could  be  regarded  as  having  been  made  by  the  debtor  as  the 
agent  of  his  creditor,  and  that  the  latter  could  ratify  the  contract  thus 
made  for  his  benefit.  In  Btirr  v.  Beers,  24  N.  Y.  178,  the  amount  due 
upon  the  mortgage  was  reserved  out  of  the  purchase  money  and  left  in 
the  hands  of  the  purchaser,  upon  his  agreement  with  the  vendor  to 
apply  it  to  the  payment  of  the  mortgage  debt.  The  purchaser  was 
bound  to  pay  the  whole  price,  but  by  this  agreement  a  portion  of  it  was 
set  apart  for  the  use  of  the  mortgagee,  and  the  purchaser  undertook  to 
pay  it  to  the  mortgagee,  and  no  one  else.  No  other  person  was 
entitled  to  receive  it.  That  arrangement  was  regarded  as  a  contract 
made  for  the  benefit  of  the  mortgagee,  and  it  was  held  that  he  could 
enforce  it.  In  that  case  the  purchase  money  was  in  fact  a  fund  in  the 
hands  of  the  purchaser,  which  he  had  agreed  to  apply  to  the  use  of  the 
mortgage  creditor.  In  performing  that  agreement  he  w^ould  have  done 
nothing  more  than  pay  his  own  debt  in  the  manner  in  which  he  had 
agreed  to  pay  it. 

But  in  the  present  case  the  agreement  was  not  to  apply  money  which 
the  promisee  delivered  for  the  purpose,  or  which  was  due  him  from  the 
promisor,  to  the  use  of  a  third  party,  but  the  promisor  engaged  to 
advance  his  own  money  for  the  purpose  of  protecting  the  property  of 
the  promisee,  which  advance  when  made  would  become  a  lien  on  the 
property  of  the  promisee.  Regarding  the  conveyance  as  a  mortgage, 
the  stipulation  was  in  effect  to  advance  to  the  promisee  on  the  security 
of  the  property,  to  discharge  prior  liens,  and  was  made  for  the  benefit 
of  the  promisee  only. 

If  such  a  contract  could  be  enforced  by  the  creditor  who  would  be 
incidentally  benefited  by  its  performance,  every  agreement  by  which  one 
party  should  agree  with  another,  for  a  consideration  moving  from  him, 
to  become  security  for  him  to  his  creditors,  or  to  advance  money  to  pay 
his  debts,  could  be  enforced  by  the  parties  whose  claims  were  thus  to 
be  secured  or  paid.  I  do  not  understand  any  case  to  have  gone  this 
length.  This  is  not  the  case  of  a  trust.  If  the  property  had  been  con- 
veyed to  Rogqrs,  in  trust,  to  pay  the  plaintiff's  claims,  the  legal  estate 
would  have  vested  in  Rogers,  and  he  would  have  been  compelled  to 
execute  the  trust.  But  no  such  trust  was  declared  in  the  deed,  nor 
could  it  be  created  by  parol,  as  to  real  estate 

It  must  further  be  considered  that,  'where  such  an  assumption  is 
made  on  an  absolute  conveyance  of  land,  it  is  unconditional  and  irrevo- 
cable. The  grantor  can  not  retract  his  conveyance,  or  the  grantee  his 
promise  or  undertaking  ;  but,  when  contained  in  a  mortgage,  the  con- 


282  IX    WHOSE    NAME    THE    ACTION'   SHOULD    BE    BROUGHT. 

veyance  is  defeasible.  The  grantor  reserves  the  right  to  annul  it  by 
paying  his  debt,  and  when  he  does  so,  he  discharges  the  agreement  to 
pay  the  prior  mortgage.  The  reservation  of  this  right  is  inconsistent 
with  the  idea  that  the  assumption  by  the  grantee  was  for  the  benefit  of 
the  prior  mortgagee  ;  for,  if  it  were,  the  grantor  would  have  no  control 
over  the  rights  thus  acquired  by  a  third  party.  The  reservation  of  this 
control  by  the  grantor  shows  that  the  agreement  was  for  his  benefit 
only,  and  prevents  its  inuring  to  the  benefit  of  any  third  party.  In 
the  present  case  the  control  had  actually  been  exercised,  and  the  grantor 
had  redeemed  and  resumed  the  enjoyment  of  his  property,  in  pursu- 
ance of  the  conditioTi  before  this  action  was  commenced,  and  the 
grantee  had  ceased  to  have  any  interest  in  or  claim  upon  it. 

I  am  not  quite  prepared  to  hold  that  the  agreement  of  the  defendant, 
to  pay  the  prior  mortgages,  was  absolutely  void  for  want  of  considera- 
tion. 

In  the  case  of  Ricard  v.  Sanderson,  \\  N.  Y.,  179,  the  property  was 
placed  in  the  hands  of  Sanderson  for  the  purpose  of  securing  debts  due 
not  only  by  the  grantor,  but  by  others,  and  not  to  Sanderson  individ- 
ually, but  to  a  firm  of  which  he  was  a  member.  The  agreement  was 
in  writing,  and  its  terms  are  not  given  in  the  case  as  reported,  and 
it  may  be  that  they  created  a  trust  in  Sanderson,  and  that  the  legal  title 
was  vested  in  him.  INIoreover,  the  case  does  not  show  that  the  instru- 
ment or  the  title,  or  possession  of  Sanderson  under  it,  had  at  the  time  of 
the  recovery  against  him  been  extinguished  or  terminated  in  pursuance 
of  any  condition  to  which  it  was  subject. 

It  may  be  that  constituting  Rogers  mortgagee  in  possession,  of  real 
estate  exceeding  in  value  the  amount  of  his  debt,  was  a  consideration 
for  the  undertaking  of  Rogers  to  advance  the  monej^  necessarj-  to  pay 
off  the  prior  liens,  and  that  while  the*  mortgage  remained  in  force,  and 
Rogers  continued  in  possession,  Hermance  could  have  compelled  the 
performance  of  that  agreement  for  the  protection  of  his  own '  estate. 
It  is  true  that  the  giving  of  the  securitj^  was  less,  so  far  as  the  defend- 
ant was  concerned,  than  Hermance  was  already  under  a  legal  obligation 
to  do.  It  was  not  so  beneficial  to  the  defendant  as  would  have  been  the 
payment  of  his  claim.  But  at  the  same  time  it  was  an  act  which  Her- 
mance was  not  legally  bound  to  perform,  and  which  might  be  preju- 
dicial to  him;  and  it  was  not  unreasonable  that  when  he  parted  with 
the  possession  of  his  property,  and  added  to  the  previous  incumbrances 
thereon,  thus  disabling  himself  from  protecting  it,  he  should  exact  of 
the  party  to  whom  he  thus  gave  it  as  securit}',  that  he  should  protect  it ; 
and  the  latter  may  have  been  willing  to  bind  himself  to  do  that  which, 
without  any  agreement,  he  might  have  been  obliged  to  do  to  protect 
his  own  securit}-.  A  stipulation  hy  the  mortgagee  in  possession  to  keep 
down  prior  mortgages,  taxes,  etc.,  might,  perhaps,  be  enforced  b}-  the 
mortgagor.     But  when  the  mortgage  is  canceled,  and  the  mortgagor  is 


GAUNSKY    "' 


ROGERS   IvT   AJ-.  283 


restored  to  the  enjoyniLiiL  c^f  the-  proijerty,  such  stipulations  are  extin- 
guished with  the  mortgage. 

The  judgmeut  should  be  afTinlKil  with  costs. 

Al  1  concur.  Judgvicnt  affirmed. ' 

ISee  also  Croiuell  v.  Hospital  of  St.  Barnabas  (1S76),  27  N.J.  Kq.  650,  657;  Arnaiul  v. 
Grigg  (1878),  29  N.  J.  Eq.  4S2.  Pardee  v.  Treat  (1880),  82  N.  Y.  385;  Root  v.  IVright  (i%?>i),  84 
N.  Y.  72;  Meech  v.  Ensign  (1881),  49  Conn.  191,  209;  Peacock  v.  Williams  (1887),  98  N.  C.  324; 
Savings  Bank  v.  Thornton  (1896),  112  Cal.  255,  259. 

In  The  State  V.  St.  Louis  &  San  Francisco  Ry.  Co.  (1894),  125  Mo.  595,  615,  the  defendant 
railway  company  had  agreed  to  "save  harmless"  another  railway  company  aganist  the 
claims  of  third  per.sons.  Said  the  Courtr  "Persons  who  are  not  parties  to  a  contract  may 
acquire  rights  nnder  it  by  assignment  and  by  novation.  In  such  cases  they  become  parties 
thereto.  But  the  general  rule  is  that  .strangers  to  a  contract  can  not  sue  upon  it.  There  are, 
however,  some  exceptions  to  this  rule.  One  is  that  where  property  is  placed  in  the  hands 
of  another  person  who  agrees  to  deliver  the  property  or  the  proceeds  arising  from  the  sale 
thereof  to  a  third  person,  such  third  person  has  a  cause  of  action  against  the  person  in 
whose  hands  the  property  was  placed.  There  is  another  exception  more  in  point  in  this 
case,  asserted  by  most  of  the  courts  in  this  country.  This  exception  may  be  stated  as 
follows:  Where  one  person,  for  a  valuable  consideration,  makes  a  promise  to  another  for 
the  benefit  of  a  third  person,  such  third  person  may  maintain  an  action  upon  the  promise. 
This  principle  has  found  a  strong  foot-hold  in  the  former  adjudications  of  this  court.  It 
was  first  limited  to  promises  contained  in  simple  contracts.  Bank  v.  Benoist,  10  Mo.  519; 
Robbins  v.  Ayres,  10  Mo.  53S;  Meyer  v.  Lowell,  44  Mo.  32S;  Flannagan  v.  Hutchinson,  47  Mo. 
237.  But  it  was  subsequently  extended  so  as  to  apply  to  covenants— contracts  under  seal. 
Rogers  V.  Gosnell,  51  Mo.  466;  S.  C.  58  Mo.  589;  Fitzgerald  v.  Barker,  70  Mo.  687;  S.  C.  85  Mo. 
14.  It  is  not  necessary  to  specify  the  debts  which  the  promisor  or  covenantor  assumes  and 
agrees  to  pay.  It  is  enough  to  speak  of  them  as  a  class,  and  the  particular  debt  in  question 
may  be  shown  to  be  one  which  falls  within  that  class.  Schuster  v.  Railroad,  60  Mo.  290; 
Schmidt  V.  Glade,  126  111.  485;  Stiell  v.  Ives,  85  111.  279,  Brenner  v.  Luth,  28  Kan.  581.^ 

"This  brings  us  to  the  far  more  difficult  question,  whether  the  state  can  maintain  this 
suit  against  the  St.  I,ouis  &  San  Francisco  Railway  Company,  on  the  tripartite  agreement 
of  the  thirty-first   of  Januar>',   1S80.     It  may  be  observed   here   that  the   principle  of  law 
before  stated,  namely,  that,  where  one  person  makes  a  promise  to  another  for  the  benefit  of 
a  third  person,  such  third  person  may  sue  on  the  promise,  must  be  kept  within  reasonable 
bounds.   To  entitle  a  third  person  to  sue  it  must  clearly  appear  that  the  contract  was  made  for 
the  benefit  of  such  third  person  or  persons,  as  one  of  its  principal  objects.   Howsmon  v.  Trenton 
Water  Co.,  119  Mo.  306      3.  mere  indirect  or  incidental  benefit  is  not  sufficient.     Burton  v. 
Larkin.  36  Kan.  246;  Bank  v.  Grand  Lodge,  98  U.   S.   123.     If  the  agreement  or  covenant  is 
s  mply  one  to  indemnify  and  save  harmless  one  of  the  parties  to  the  contract,  against  the 
claims  of  third  persons,  then  such  third  persons  can  not  sue  upon  the  agreement  or  cove- 
nant.    Such  a  contract,  whether  under  seal  or  not,  is  not  a  contract  for  the  benefit  of  third 
persons  within  the  meaning  of  the  exception  to  the  general  rule.     Katisas  City  ex  rel.  v. 
O'CmncU,  99  Mo.  357;   Weller  v.  Goble,  66  Iowa,  113;  Howsmon  v.  Trenton    Water   Co.,  supra. 
"  Now,  to  understand  this  tripartite  agreement  we  must  first  see  what  were  the  leading 
objects  sought  to  be  accomplished  by  it.     Two  of  the  companies,  the  Atchison  and  the  San 
Francisco,  owned  and  operated  separate  but   connecting   lines.     They  desired  to  build   a 
further  connecting  line  from  a  point  in.New  Mexico  west  to  the  Pacific  coast,  and  to  operate 
the  whole  as  a  continuous  line  under  a  traffic  agreement.     In  buiUiin?  the  new  line  they 
desired   to    avail    thems.'lves  of  the   charter  and    land    grant   of    the    Atlantic   &   Pacific 
Company.     These  were  the  leading  objects  in  view.     To  accomplish  them  the  Atchison  and 
San    Francisco   companies   acquired  seven-eighths  of  the  stock  of  the  Atlantic  &  Pacific. 
That  company  was  insolvent,  and  many  of  its  debts  were  secured  by  mortgages  on  the 
road  owned  and  operated  by  the  San  Francisco   Company.     As  the  new   road  was  to   b^ 
built  to  a  large  extent  by  aid  furnished  by  tht;  two  solvent  companies,  they  undertook  to 
determine   which   should,  as  between   themselves,  liquidate  the  debts  of   the  Atlantic  & 
P-cific.     To   that   end  they  made   the  schedule  of  debts  and  liabilities  of  the  Atlantic  & 
Pacific,  before  set  out;  but  they  were  careful  to  say  valid  defences  might  exist  as  tosome  of 
them.     The  San  Francisco  Company  then  agreed  to  and  with  the  other  companies  first, 
'to  take   up,    pay  and  cancel  and  surrender  canceled,    to  the    party   of  the  second  part 
.;  Atlantic  &  Pacific  Co.),  all  the  overdue  coupons  on  the  bonds  of  said  party  of  the  second 


284  IN   WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

CAMPBELL  V.  SMITH. 

Court  of  Appeals  of  New  York,  October  2,   1877. 

[71  N.  Y.  26.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court,  revers- 
ing a  judgment  in  favor  of  the  defendant,  entered  upon  a  decision  in  a 
trial  without  a  jur>-.^ 

This  action  was  brought  by  plaintiff  as  assignee  of  a  bond  and  mort- 
gage executed  by  Maria  C.  Hood  upon  premises  in  Brooklyn,  to  recover 
a  deficiency  arising  upon  foreclosure  sale,  upon  an  alleged  covenant  in 
a  deed  from  said  Maria  C.  Hood  to  defendant,  assuming  and  agreeing 
to  pay  the  mortgage. 

The  courts  found,  in  substance,  among  other  things,  that  the  mort- 
gagor, in  pursuance  of  an  agreement  of  sale  made  wnth  one  Burtis, 
executed  and  delivered  to  the  latter  a  deed  of  the  premises  which  recited 
that  the  amount  of  the  mortgage  was  deducted  from  the  purchase-price, 
and  the  conveyance  was  subject  thereto;  and  contained  a  covenant  on 
the  part  of  the  grantee  to  pay  the  same.  The  name  of  the  grantee 
was  left  blank,  and  Burtis  was  authorized  to  insert  the  name  of  any 
person  or  grantee.  Burtis  thereafter,  being  indebted  to  a  firm  of  which 
defendant  was  a  member,  agreed  with  the  latter  that  he  would  insert 
his  name  in  the  deed,  and  that  any  profits  arising  from  a  sale  or  other 
disposition  of  the  premises   should  be  applied  upon  said  indebtedness. 

part  now  outstanding;  second,  and  also  agrees  to  save  the  parties  hereto  of  the  second  and 
third  part,  severally,  harmless  from  all  bonds,  script,  debentures,  floating  dtbt,  and  other 
obligations  and  liabilities  of  the  party  of  the  second  part,  as  well  again.st  such  as  are 
hereinbefore  enumerated,  classified  and  described,  as  any  and  all  others  now  exi.sting,  and 
to  pay  and  surrender  the  same  cancelled  and  discharged  to  the  party  of  the  second  part  as 
fast  as  the  same  are  obtained  by  the  party  of  the  first  part,  by  payment  or  otherwise,' 
excepting,  however,  the  bonds  scheduled  at  $1,189,905,  and  at  $795,000. 

"There  is  a  marked  difference  between  the  two  clauses  of  the  contract.  In  the  first  there 
is  an  undertaking  on  the  part  of  the  San  Francisco  Company  to  pay  the  overdue  coupons. 
The  state's  demand  does  not  come  within  that  clause.  By  the  second  clause  the  San  Fran- 
cisco Company  agrees  to  save  the  other  contracting  companies  harmless  from  the  ether 
obligations  and  liabilities  of  the  Atlantic  &  Pacific  Company  whether  scheduled  or  not. 
This  is  the  clause  upon  which  the  state  does,  and  must,  rely.  Thus  far  this  clause  is  nothing 
more  than  an  agreement  to  save  the  other  parties  harmless,  that  is  to  say,  an  agreement  of 
indemnity.  It  is  true  this  clause  goes  on  to  say  the  San  Francisco  Company  shall  '  pay  and 
surrender  the  same,  canceled  and  discharged,  to  the  second  party  as  fast  as  the  same  are 
obtained  by  the  party  of  the  first  part,  by  payment  or  otherwise  ;'  but  these  words  are  subordi- 
nate to  the  agreement  to  save  harmless,  and  were  designed  to  give  a  further  expression  to 
the  same  thought.  They  can  not  have  the  effect  to  change  the  agreement  from  one  of 
indemnity  to  a  contract  made  for  the  benefit  of  third  persons.  It  was  certainly  never 
intended  that  the  San  Francisco  Company  should  pay  any  obligation  to  which  the  Atlantic 
&  Pacific  Company  had  a  defence  of  any  kind.  Taking  the  contract  as  a  whole  and  keep- 
ing in  view  its  general  object  and  purpose,  it  is  simply  an  adjustment  of  affairs  as  between 
the  parties  thereto,  and  was  never  designed  or  intended  to  be  a  contract  for  the  benefit  of 
third  persons." — Per  Black,  P.  J. — Ed. 

1  Reported  below,  Campbell  v.  Smith  (1876),  8  Hun,  6. 


CAMPBELL   V.    SMITH.  285 

Burtis  thereupon  inserted  defendant 's  name  as  grantee  in  the  deed,  and  had 
the  same  recorded,  with  defendant's  knowledge  and  consent.  Burtis  there- 
after procured  a  purchaser,  and  defendant  at  his  request  conveyed  the 
premises  subject  to  the  mortgage,  the  deed  containing  a  simihar  cove- 
nant. Plaintiff  subsequently  foreclosed  his  mortgage  without  making 
defendant  a  party,  and  upon  foreclosure  sale  a  deficiency  arose.  Defend- 
ant's grantee  was  made  a  party  to  the  foreclosure  sale,  but  no  judgment 
for  any  deficiencj^  was  demanded  or  taken  against  him. 

The  court  found  that  the  deed  was  accepted  by  defendant  as  security 
for  the  indebtedness  of  Burtis  to  defendant's  firm  and  that  defendant 
was  entitled  to  judgment.     Judgment  was  entered  accordingly. 

D.  P.  Barnard,  for  appellant. 

J.    T.  il/arm«,  for  respondent.' 

Church,  Ch.  J. — We  concur  with  the  General  Term  that  the  case  of 
Garnsey  v.  Rogers,  47  N.  Y.  223,  is  not  controlling  in  favor  of  the 
defendant.  In  that  case  a  debtor  conveyed  to  his  creditor  certain  prem- 
ises by  deed  as  security  for  his  debt,  and  it  was  held  that  an  agreement 
in  the  deed  that  the  creditor  would  pay  a  prior  incumbrance  was  for  the 
benefit  and  protection  of  the  debtor,  and  did  not  inure  to  the  benefit  of 
the  holder  of  the  incumbrance,  within  Lawrence  v.  Fox,  20  N.  Y.  268, 
and  kindred  cases  ;  and  that  upon  the  payment  of  the  debt,  and  a  recon- 
veyance of  the  premises  to  the  debtor,  with  the  assumption  upon  the 
part  of  the  latter  of  the  incumbrance,  the  creditor  w^as  released  from  all 
obligation  upon  his  covenant  in  the  deed.  Here  no  such  relation  existed 
between  Hood,  the  grantor,  and  the  defendant.  The  former  conveyed 
absolutely  all  her  interest  in  the  premises,  and  the  defendant,  by 
consenting  to  the  insertion  of  his  name  as  grantee,  and  accepting  the 
conveyance,  occupied  the  position  of  purchaser.  As  between  them  the 
relation  of  grantor  and  grantee  existed,  with  all  the  rights  and  obliga- 
tions incident  to  that  position.  The  covenant  to  pay  the  mortgage  was 
absolute,  and  the  mortgagee  had  the  right  to  enforce  it.  The  principle 
that  when  A.  for  a  valuable  consideration,  agrees  with  B.  to  pay  his 
debt  to  C,  the  latter  can  enforce  the  contract  against  A.,  has  been 
repeatedly  adjudicated,  and  is  applicable  to  the  transaction  developed 
in  this  case.- 

The  transaction  with  Burtis  did  not  impair  the  right  of  Hood,  nor 
the  plaintiff  as  assignee  of  the  mortgagee.  That  was  an  arrangement 
collateral  to  the  deed,  and  affected  only  the  parties  to  it.  The  relative 
rights  of  Burtis  and  the  defendant  are  not  involved  in  this  action.  The 
defendant  consented  to  occupy  the  position  of  grantee  in  the  deed,  under 
an  agreement  with  Burtis,  which  can  not  affect  the  plaintiff. 

1  The  arguments  are  omitted. 

2  Referring  especially  to  Lawrence  v.  Fox  (1S59),  20  N.  Y.  268  ;  Burr  v.  Beers  (1S61),  24  N. 
Y.  178  ;  Ricard  v.  Sanderson  (1S69),  41  N.  Y.  179  ;  Thorp  v.  Keokuk  Coal  Co.  (1872).  48  N.  Y. 
253- 


286  IN   WHOSE    NAME    THE    ACTION   SHOULD    BE    BROUGHT. 

It  is  unnecessaty  to  consider  whether  the  defendant  is  entitled  in 
equity  to  the  right  of  redemption.     .     .     .^ 
The  judgment  must  be  affirmed. 
All  concur.  Judgment  affir^ncd.'^ 


J 


NATIONAL  BANK  v.   GRAND  LODGE. 

Supreme  Court  of  the  United  States,  October,   1878. 

[98    U.  S.   123.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern  Dis- 
trict of  Missouri. 

This  is  an  action  by  the  Second  National  Bank  of  St.  Louis,  Mis- 
souri, against  the  Grand  Lodge  of  ]Missouri  of  Free  and  Accepted 
Ancient  Masons,  to  compel  the  payment  of  certain  coupons  formerly 
attached  to  bonds  issued  in  June,  1869,  by  the  Masonic  Hall  Associa- 
tion, a  corporation  existing  under  the  laws  of  the  State  of  Missouri,  in 
relation  to  which  bonds  the  Grand  Lodge,  on  October  14,  1869,  adopted 
the  following  resolution : 

''Resolved,  that  this  Grand  Lodge  assume  the  payment  of  the  two  hundred 
thousand  dollars  bonds  issued  by  the  Masonic  Hall  Association,  provided  that 
stock  is  issued  to  the  Grand  Lodge  by  said  association  to  the  amount  of  said 
assumption  of  payment  by  this  Grand  Lodge,  as  the  said  bonds  are  paid.  " 

The  court  below  instructed  the  jur\',  that,  independently'  of  the  ques- 
tion of  the  power  of  the  Grand  Lodge  to  pass  the  resolution,  it  was 
no  foundation  for  the  present  action,  and  directed  a  verdict  for  the 
defendant. 

The  jury  returned  a  verdict  in  accordance  with  the  direction  of  the 
court ;  and  the  judgment  having  been  entered  thereon,  the  plaintiff 
sued  out  this  w^it  of  error. 

Mr.  Joh7i  C.  Orrick,  for  the  plaintiff  in  error. 

Mr.  John  D.  S.  Drydcft,  contra. 

iPart  of  the  opinion,  on  another  point,  is  omitted. 

2See  also  Smith  v.  Trtislozv  (1881),  84  N.  Y.  660.  Distinguished,  Roe  v.  Barker  (1880),  8? 
N.  Y.  431,  435  :  "  The  learned  counsel  for  the  appellant  endeavors  to  save  this  case  from  the 
effect  of  the  decision  referred  to,  {Garnsey  v.  Rogers,  47  N.  Y.  237)  in  several  ways.  He 
claims  that  upon  the  evidence  this  was  an  absolute  sale.  That  could  not  be  where  the 
right  of  redemption  was  reserved,  and  that  fact  is  not  d.isputed.  He  suggests  that  in  Garn- 
sey  V.  Rogers  the  right  of  redemption  had  been  exercised  before  the  commencement  of  the 
action,  while  in  the  case  at  bar  it  had  not.  The  difference  is  immaterial.  The  rule  depends 
upon  the  existence  of  the  right  and  not  upon  its  exercise.  While  that  remains  the  promise 
if  made,  is  not  absolute,  and  is  plainly  inteiu  ed  solely  for  the  benefit  of  the  other  party  to 
the  contract,  and  not  at  all  for  that  of  the  creditor.  That  it  may  result  in  a  benefit  to  him  is 
not  enough  to  give  him  an  absolute  right  of  action.  The  cases  cited  by  the  learned  counsel 
for  the  appellant  do  not  conflict  with  this  rule.  (Ricard  v.  Sanderson^  41  N.  Y.  179  ;  Cooley 
V.  Howe  Machine  Co.,  53  N.  Y.  620  ;  Campbell  v.  Smith,  71  N.  Y.  26.)  In  all  of  them  the  cove- 
nants to  pay  are  absolute  and  the  liability  fixed,  and  it  was  upon  that  distinct  ground  that 
the  creditor's  right  of  action  was  sustained." — Per  Fincu,  J. 


NATIONAL   BANK   V.    GRAND    LODGE.  287 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

It  is  unnecessary  to  consider  the  several  assignments  of  error  in 
detail,  for  there  is  an  unsurmountable  difficulty  in  the  way  of  the 
plaintiff's  recovery.  The  resolution  of  the  Grand  Lodge  was  but  a 
proposition  made  to  the  Ma.sonic  Hall  Association,  and,  when' accepted, 
the  resolution  and  acceptance  constituted  at  most  only  an  executory 
contract  inter  partes.  It  was  a  contract  made  for  the  benefit  of  the 
association  and  the  Grand  Lodge,— made  that  the  latter  might  acquire 
the  ownership  of  stock  of  the  former,  and  that  the  former  might  obtain 
relief  frpm  its  liabilities.  The  holders  of  the  bonds  were  not  parties  to 
it,  and  there  was  no  privity  between  them  and  the  lodge.  They  may 
have  had  an  indirect  interest  in  the  performance  of  the  undertakings 
of  the  parties,  as  they  would  have  in  an  agreement  by  which  the  lodge 
should  undertake  to  lend  money  to  the  association,  or  contract  to  buy 
its  stock  to  enable  it  to  pay  its  debts ;  but  that  is  a  very  different  thing 
from  the  privit)^  necessary  to  enable  them  to  enforce  the  contract  by 
suits  in  their  own  names. 

We  do  not  propose  to  enter  at  large  upon  a  consideration  of  the 
inquiry  how  far  privity  of  contract  between  a  plaintiff"  and  a  defendant 
is  necessary  to  the  maintenance  of  an  action  of  assumpsit.  The  subject 
has  been  much  debated  and  the  decisions  are  not  at  all  reconcilable. 
No  doubt  the  general  rule  is  that  such  a  privity  must  exist.  But  there 
are  confessedly  many  exceptions  to  it.  One  of  them,  and  by  far  the 
most  frequent  one,  is  the  case  where,  under  a  contract  between  two 
persons,  assets  have  come  to  the  promisor's  hands  or  under  his  control 
which  in  equity  belong  to  a  third  person.  In  such  a  case  it  is  held  that 
the  third  person  may  sue  in  his  own  name.  But  then  the  suit  is  founded 
rather  on  the  implied  undertaking  the  law  raises  from  the  possession  of 
the  assets,  than  on  the  express  promise.  Another  exception  is  where 
the  plaintiff"  is  the  beneficiary  solely  interested  in  the  promise,  as  where 
one  person  contracts  with  another  to  pay  money  or  deliver  some  valua- 
ble thing  to  a  third.  But  where  a  debt  already  exists  from  one  person 
to  another,  a  promise  by  a  third  person  to  pay  such  debt  being  prima- 
rily for  the  benefit  of  the  original  debtor,  and  to  relieve  him  from  liability 
to  pay  it  (there  being  no  novation),  he  has  a  right  of  action  against  the 
promisor  for  his  own  indemnity  ;  and  if  the  original  creditor  can  also 
sue,  the  promisor  would  be  liable  to  two  separate  actions,  and  therefore 
the  rule  is  that  the  original  creditor  can  not  sue.  His  case  is  not  an 
exception  from  the  general  rule  that  privity  of  contract  is  required. 
There  are  some  other  exceptions  recognized,  but  they  are  unimportant 
now.  The  plaintiff"  's  case  is  within  none  of  them.  Nor  is  he  sole  benefi- 
ciary of  the  contract  between  the  association  and  the  Grand  Lodge.  The 
contract  was  made,  as  we  have  said,  for  the  benefit  of  the  association, 
and  if  enforceable  at  ail,  is  enforceable  by  it.  That  the  several  bond- 
holders of  the  association  are  not  in  a  situation  to  sue  upon  it  is  appa- 
rent on  its  face.     Even  as  between  the  association  and  the  Grand  Lodge. 


288  IN   WHOSE   NAME   THE   ACTION   SHOULD   BE   BROUGHT. 

the  latter  was  not  bound  to  pay  anything,  except  so  far  as  stock  of  the 
former  was  delivered  or  tendered  to  it.  The  promise  to  pay  and  the 
promise  to  deliver  the  stock  were  not  independent  of  each  other.  They 
were  concurrent  and  dependent.  Of  this  there  can  be  no  doubt.  The 
resolution  of  the  lodge  was  to  assume  the  payment  of  the  two  hundred 
thousand  dollar  bonds,  issued  by  the  association,  ''Provided,  that 
stock  is  issued  to  the  Grand  Lodge  by  said  association  to  the  amount 
of  said  assumption, "  .  .  .  "as  said  bonds  are  paid."  Certainly  the 
obligation  of  the  lodge  was  made  contingent  upon  the  issue  of  the  stock, 
and  the  consideration  for  payment  of  the  debt  to  the  bondholders  was 
the  receipt  of  the  stock.  But  the  bondholders  can  neither  deliver  it  nor 
tender  it ;  nor  can  they  compel  the  association  to  deliver  it.  If  they 
can  sue  upon  the  contract,  and  enforce  payment  by  the  Grand  Lodge  of 
the  bonds,  the  contract  is  wholly  changed,  and  the  lodge  is  compelled 
to  pay  whether  it  gets  the  stock  or  not.  To  this  it  can  not  be  presumed 
that  the  lodge  would  ever  have  agreed.  It  is  manifest,  therefore,  that 
the  bondholders  of  the  association  are  not  in  such  privity  with  the  lodge, 
and  have  no  such  interest  in  the  contract,  as  to  warrant  their  bringing 
suit  in  their  own  names. 

Hence  the  present  action  can  not  be  sustained,  and  the  Circuit  Court 
correctly  directed  a  verdict  for  the  defendant. 

Judgment  affirmed} 


1  Distinguished,  5oM5//*r  v.  Keeley  {\%?,o),  7  Fed.  Rep.  447,  450;  Pope  v.  Porter  (18S7),  33 
Fed.  Rep.  7,  9.  In  American  Exchange  National  Bank  v.  Northern  Pacific  R.  R.  Co.,  76  Fed. 
Rep.  130,  before  the  U.  S.  Circait  Court,  D.  Washington,  N.  D.;  Hanford,  D.  J.,  remarked: 
"  This  is  an  action  by  the  American  Exchange  National  Bank  of  New  York  ti  recover  a 
balance  due  to  the  plaintiff  from  the  Chicago  &  Northern  Pacific  Railroad  Company. 

"The  complaint  alletres  that  after  the  debt  had  been  contracted,  the  defendant,  the 
Northern  Pacific  Railroad  Company,  entered  into  and  made  an  agreement  with  the  said 
Chicago  &  Northern  Pacific  Railroad  Company,  whereby  for  a  valuable  consideration 
moving  from  the  Chicago  &  Northern  Pacific  Railroad  Company  to  the  defendant,  said 
defendant  assumed,  covenanted,  and  agreed  to  pay  the  amount  of  the  indebtedness  of  said 
Chicago  &  Northern  Pacific  Railroad  Company  to  the  plaintiff.  The  defendant  has 
demurred  to  the  complaint,  and  upon  the  argument  its  counsel  relies  upon  the  point  that 
the  plaintiff,  being  a  stranger  to  the  contract,  can  not  sue  the  defendant. 

'"The  explicit  language  of  the  complaint  makes  it  clear  that  the  promise  of  the  defendant 
was  to  pay  an  existing  debt,  and  it  was  made  for  the  benefit  of  the  Chicago  &  Northern 
Pacific  Railroad  Company:  and  no  facts  are  alleged  from  which  an  inference  may  be  drawn 
that  the  parties  to  the  contract  were  actuated  by  a  desire  to  benefit  the  plaintiff,  nor  that 
the  scope  of  their  intentions  included  any  provision  for  rights  or  interests  other  than  their 
own;  and  there  is  no  pretence  that  under  the  contract  anything  of  value  or  assets  have 
come  to  the  promisor's  hand  or  under  ils  control,  which,  in  equity,  belongs  to  the  plaintiff 
or  is  subject  to  any  lien  existing  in  favor  of  the  plaintiff.  The  case  therefore  comes  fully 
and  fairly  within  the  rule  of  the  decision  of  the  supreme  court  in  the  case  of  National  Bank 
V.  Grand  Lodge,  gS  U.  S.  123-125. 

"The  rule  and  the  authority  of  the  case  cited  have  received  express  recognition  in  the 
circuit  court  of  appeals  for  the  Ninth  circuit,  in  the  case  of  Sayward  v.  Dexter,  Horton  & 
Co.,  19  C.  C.  A.  176,  72  Fed.  Rep.  765.     .     . 

"  Other  cases  cited  by  counsel  for  the  plaintiff,  although  well  considered  and  worthy  of 
respect,  in  so  far  as  they  differ  from  National  Bank  v.  Grand  Lodge  and  Sayward  v.  Dexter, 
Horton  &  Co.,  must  be  passed  without  other  comment  than  this:  they  do  not  afford  a  pre- 
text for  ruling  contrary  to  the  decisions  of  the  supreme  court  of  the  United  States,  and  of 
the  United  States  circuit  court  of  appeals  for  this  circuit.     The  demurrer  is  sustained." 


BURTON    V.    LAKKIN  289 


BURTON  V.   LARKIN. 

Supreme  Court  of  Kansas,  January  Term,   1887. 

[36  Ka)i.   246.] 

Action  to  recover  for  goods  alleged  to  have  been  sold  and  delivered 
by  plaintiffs  to  defendants.     Trial  at  the  April   Term,  1885,  and  judg- 
ment for  plaintiff  for  $469.46.     The  defendant  Burton  brings  the  case 
here. 
/.  B.  Johnson,  and  /.  D.  McFarland,  for  plaintiff  in  error. 
Lloyd  &  Evans,  for  defendant  in  error. 

Valentine,  J. — This  was  an  action  brought  by  Arthur  Larkin  against 
Howes  B.  Clark  and  Oscar  A.  Burton,  for  $461.26,  for  goods,  wares, 
merchandise,  and  chattels  alleged  to  have  been  sold  and  delivered  by 
the  plaintiff  to  the  defendants. 

The  action  was  tried  by  the  court  and  a  jury,  and  the  court  instructed 
thejun,- to  find  for  the  plaintiff.  The  jury  so  found,  assessing  the  amount 
of  the  plaintiff's  recovery  at  $469.46,  and  the  court  rendered  judgment 
accordingly.  To  reverse  this  judgment.  Burton,  as  plaintiff  in  error, 
brings  the  case  to  this  court,  making  Arthur  Larkin  the  defendant  in 
error. 

It  appears  that  Burton  is,  and  has  been  for  many  years,  a  resident  of 
the  state  of  Vermont,  and  at  one  time  owned  a  large  amount  of  real 
estate  in  Ellsworth  county,  Kansas  ;  that  Clark  is  his  nephew ;  that 
Burton  sold  said  real  estate  to  Clark  on  credit,  retaining  the  legal  title 
in  himself  as  a  securit}-  for  the  purchase-money,  and  also  at  various 
times  loaned  Clark  money  for  the  purpose  that  Clark  might  cultivate 
the  land  and  carry  on  the  business  of  farming  and  stock-raising  upon 
the  same.  Clark  had  a  family,  and  with  his  family  resided  upon  the 
land.  About  once  a  year  Burton  and  Clark  had  settlements  of  their 
affairs,  and  at  each  time  entered  into  a  new  agreement.  Burton  at  all 
times  retaining  the  legal  title  to  the  land  in  himself,  as  a  security  for 
the  payment  of  the  purchase-money  and  for  the  monej-  advanced  b}- 
him  to  enable  Clark  to  carry  on  the  aforesaid  business. 

On  November  22,  1883,  the^^  had  a  settlement,  and  entered  into  a 
written  agreement,  similar  to  agreements  previously-  entered  into 
between  them,  whereby  Clark  agreed  to  pa}-  Burton  $30,650,  in  such 
amounts  and  at  such  times  as  he  could,  with  interest  thereon  at  the 
rate  of  seven  per  cent,  per  annum  ;  and  upon  full  payment  Burton  was 
to  convey  to  Clark  the  aforesaid  real  estate.  This  agreement  also  con- 
tained the  following  stipulation,  which  constitutes  the  only  foundation 
for  the  present  action  between  Larkin  and  Burton,  to-wit : 


290  IN  WHOSE  name;  the  action  should  be  brought. 

"  It  is  also  agreed  and  understood  that  the  said  party  of  the  first  part  (Berton) 
shall  furnish  said  party  of  the  second  part  (Clark)  such  sums  of  money  as  may 
be  necessary  to  pay  the  current  expenses  of  said  second  party,  it  being  under- 
stood that  said  second  party  shall  render  a  monthly  account  of  expenses  to  said 
first  party. " 

After  this  written  agreement  was  made,  and  prior  to  the  commence- 
ment of  this  action,  which  was  on  December  26,  1884,  the  goods,  wares, 
merchandise,  and  chattels  for  which  the  action  was  brought  were  sold 
and  delivered  by  Larkin  to  Clark,  and  to  Clark  onl)'.  It  is  not  claimed 
on  the  part  of  Larkin  that  they  were  in  fact  sold  or  delivered  to  Burton, 
or  to  anyone  at  his  instance  or  request,  or  that  Burton  received  any 
benefit  from  them,  or  that  the  credit  for  the  same  was  given  to  Burton, 
or  that  he  in  any  manner  became  liable  for  them,  except  by  reason  of 
the  aforesaid  stipulation  contained  in  the  aforesaid  written  contract 
between  Burton  and  Clark.  It  is  claimed,  however,  that  by  virtue  of 
this  stipulation  Burton  is  liable. 

It  is  unquestionably  true  that  in  this  state  a  person,  for  whose  benefit 
a  promise  to  another,  upon  a  sufiicient  consideration,  is  made,  may 
maintain  an  action  on  the  contract  in  his  own  name  against  the 
promisor.*    And  this  same  doctrine  is  found  in  many  other  states."  .   .   . 

But  there  are  limitations  upon  this  rule  ;  or  rather,  the  rule  is  not  so 
far  extended  as  to  give  to  a  third  person  who  is  only  indirectly  and 
incidentally  benefited  by  the  contract  a  right  to  sue  upon  it.  In  the 
case  of  Shnson  v.  Brown,  68  N.  Y.  355  et  seq.,  the  following  language 
is  used  :  "  It  is  not  everj-  promise  made  by  one  to  another  from  the 
performance  of  which  a  benefit  may  inure  to  a  third,  which  gives  a 
right  of  action  to  such  third  person,  he  being  neither  privy  to  the 
contract  nor  to  the  consideration.  The  contract  must  be  made  for  his 
benefit  as  its  object,  and  he  must  be  the  party  intended  to  be  benefited.  "^ 

1  Citing,  Anthony  z'.  Herman,  14  Kas.  494;  Harrison  v.  Simpson,  17  id.  50S;  Center  v. 
McQuesten,  18  id.  476 ;  K.  P.  Ry.  Co.  v.  Hopkins,  18  id.  494;  Floyd  -■.  Ort,  20  id.  162  ;  Life 
Assurance  Society  v.  Welch,  26  id.  641,  642  ;  Brenner  v.  Luth,  28  id.  581. 

2  A  part  of  the  opinion,  quoting  from  a  note  to  Shamp  v.  Meyer,  24  Cent.  Law  Journ.  1 1 1^ 
112,  is  omitted. 

3  In  this  case,  Simson  v.  Brown  (1877),  68  N.  Y.  355,  the  facts  were  as  follows: 

On  March  13,  1869,  William  Boyd  executed  and  delivered  to  W.  J.  Macdonald,  a  bond  and 
mortgage  to  secure  the  payment  of  $500.  On  April  28th,  1869,  Macdonald  duly  assigned  and 
delivered  said  bond  and  mortgage  to  the  plaintiff.  Subsequently  and  prior  to  October  24th, 
1871,  Boyd  without  knowledge  of  such  assignment,  paid  Macdonald  the  full  amount  due 
and  unpaid  on  said  bond  and  mortgage,  which  payment  was  made  without  the  knowledge 
of  the  plaintiff.  On  October  24th,  1S71,  for  the  purpose  of  securing  to  the  plaintiff  the 
amount  unpaid  on  this  bond  and  mortgage  and  to  indemnify  Boyd  against  the  claim  of  the 
plaintiff  thereon,  W.  J.  Macdonald  and  one  John  Macdonald  executed  and  delivered  under 
seal,  their  bond  to  Boyd,  in  the  penal  sum  of  $1,000,  conditioned  Ihat  if  the  obligors  pay 
or  cause  to  be  paid  unto  plaintiff  the  amount  of  said  bond  and  mortgage  and  hold  the  said 
Boyd  harmless  therefrom  then  the  bond  should  be  void.  Defendant  guaranteed  the  pay- 
ment of  said  bond.  On  June  13,  1873,  Boyd,  without  the  knowledge  or  consent  of  the 
plaintiff  and  without  actual  consideration,  executed  under  his  hand  and  seal  an  instrument 
expressing  a  consideration  and  acknowledgi;;g  full  sat  sfaction  of  said  bond,  and  consented 
in  said  writing  that  the  said  bond  be  canceled.     On  June  27,  1S73,  for  a  valuable  considera- 


IJUKTON    X'.    LARK  IN.  291 

We  think  this  is  a  correct  statement  of  the  law.' 

Of  course  the  name  of  the  person  to  be  benefited  by  the  contract  need 
not  be  given  if  he  is  otherwise  sufficiently  described  or  designated. 
Indeed,  he  may  be  one  of  a  class  of  persons,  if  the  class  is  sufficiently 
described  or  designated.  In  any  case  where  the  person  to  be  benefited 
is  in  any  manner  sufficiently  described  or  designated,  he  may  sue  upon 
the  contract. 

But  the  present  contract  does  not  come  within  any  of  the  rules 
authorizing  a  third  person  to  sue  upon  it.  It  is  sub.stantially  as  fol- 
lows: Burton  agreed  with  Clark  that  he  (Burton)  would  furnish  to 
Clark  such  sums  of  money  as  might  be  necessary  for  Clark  to  pay  his 
(Clark's)  own  future  current  expenses:  not  to  pay  any  existing  debt  or 
obligation;  nor,  indeed,  for  Burto?i  to  pay  any  debt  or  obligation,  pres- 
ent or  future,  except  to  Clark;  nor  for  either  to  pay  to  any  particular 
person  or  class  of  persons,  except  Burton  to  Clark;  nor  to  pay  for  any 
particular  article,  or  act,  or  thing;  nor  to  pay  or  to  do  any  other  act  or 
thing  for  the  benefit  o^  ?iny  particular  Y)Qrson  or  class  of  persons,  except 
Burton  to  Clark.  Indeed,  the  contract  is  solely  between  Burton  and 
Clark,  and  solely  for  the  benefit  of  these  two  persons,  and  not  for  the 
benefit  of  any  other  person  or  class  of  persons. 

Of  course  this  contract,  if  everj-thing  were  to  occur  as  was  contem- 
plated, might  indirectly  result  to  the  benefit  of  others  than  Burton  or 
Clark.  But  so  might  aliuost  any  contract  result  to  the  benefit  of 
others  than  the  parties  thereto,  and  ^-et  no  cause  of  action  in  favor  of 
third  persons  and  against  one  of  the  parties  to  the  contract  could  be 
founded  upon  any  such  indirect  results.  When  the  contract  in  the 
present  case  was  entered  into,  no  debt  or  other  obligation  existed  in 
favor  of  lyarkin  and  against  either  Burton  or  Clark ;  nor  does  it  appear 
that  it  was  contemplated  by  either  Burton  or  Clark  that  any  such  debt 
should  be  created;  or,  indeed,  that  any  debt  to  any  person  should  be 
created.  Probably,  at  the  time  when  this  contract  was  entered  into, 
Larkin  was  not  thought  of;  and  probably  also  it  was  the  intention  of 

tion  Boj'd  duly  assigned,  transferred,  and  delivered  to  the  plaintiff  the  said  bond  and 
indorsement  of  gizaranty  thereon,  and  he  is  now  the  lawful  owner  and  holder  thereof. 

As  a  conclusion  of  law,  the  court  found  that  the  plaintiff  was  entitled  to  recover  the 
amount  of  the  bond  and  mortgage. 

The  defendant  appealed  and  the  reviewing  court  reversed  the  judgment  below,  holding 
that  the  case  did  not  come  within  the  rule  that  where  one,  for  a  valid  consideration,  makes 
a  promise  to  another  for  the  benefit  of  a  third,  the  third  person  may  maintain  an  action 
thereon  in  his  own  name  and  for  his  own  use.     .     . 

"  It  is  not  to  be  denied,"  said  the  Court,  "  that  the  perfrrmance  of  the  condition  of  the 
bond  to  Boyd  would  have  worked  consequentially  a  benefit  to  Simson,  if  it  had  been  per- 
formed by  the  payment  of  the  $500  and  interest  to  him.  It  might  then  be  said,  in  a  way,  to 
have  been  a  benefit  to  him  in  the  execution  of  it.  But  it  is  not  every  promise,"  etc.,  as  in 
the  text.— £:rf. 

1  Citing  also  Turk  v.  Ridge,  41  N.  Y.  201;  Garusey  v.  Rogers,  47  id.  233;  Merrill  -'.  Green, 
55  id.  270;  Vrooman  v.  Turner,  69  id.  2S0;  I,.  O.  S.  Rid.  Co.  v.  Curtis,  80  id.  219;  Dunning  v. 
Leavitt,  S5  id.  30;  Sanders  v.  Filley,  29  Mass.  554;  Johnson  v.  Foster,  53  Mass.  167;  Greenwood 
V.  Sheldon,  21  Minn.  254;  Ferris  v.  Carson  Water  Co.,  16  Nev.  44;  Anderson  ;.•.  Fitzgerald,  21 
Fed.  Rep.  294;  Nationa'  Bank  v.  Grand  I<odge,  gS  U.  S.  123 


292  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

the  parties  that  Burton  should  furnish  the  monej^  to  Clark,  and  that 
Clark  should  pay  his  current  expenses  as  fast  as  he  contracts  them,  and 
that  he  should  never,  under  any  circumstances,  create  any  debt  or 
debts  or  other  obligation  for  such  expenses  to  any  person. 

But,  however,  this  may  be,  it  cannot  be  said  in  any  aspect  of  the 
case  that  the  contract  was  made  for  the  benefit  of  Larkin  within  the 
meaning  of  the  rule  that  permits  third  persons  to  sue  upon  contracts. 
The  sums  of  money  to  be  furnished  by  Burton  to  Clark  were  to  be 
furnished  as  loans  to  Clark,  and  not  to  purchase  anything  or  to  pay  for 
anything  for  Burto?i  's  benefit,  except  indirectly  as  follows  :  they  were 
furnished  to  Clark  to  enable  him  to  carry  on  Clark's  own  business,  and 
thereby  incidentallj-  to  preserve  Burton's  securities,  for  the  payment  of 
Clark's  debts  to  Burton.  As  between  Burton  and  Clark,  Clark  owed 
Burton  many  thousands  of  dollars ;  and  Burton  should  not  be  com- 
pelled to  pay  Clark's  debts.  The  debt  sued  for  in  the  present  case  is 
purely  Clark's  debt. 

It  is  further  claimed,  b}'  counsel,  for  Larkin,  that  "the  contract 
between  Burton  and  Clark  really  constituted  Clark  the  agent  of  Burton, 
and  Burton  is  liable  as  the  principal  debtor. "  We  do  not  think  that 
this  claim  is  tenable  at  all.  All  the  property,  real  and  personal, 
belonged  to  Clark,  although  the  legal  title  thereto  was  in  Burton,  to 
secure  him  for  the  amount  which  Clark  owed  him  ;  and  Clark  had  full 
and  complete  possession  and  control  of  the  property  ;  and  it  was  also 
expressly  stipulated  in  a  chattel  mortgage  given  \)\  Clark  to  Burton  at 
the  time  when  said  contract  was  entered  into,  that  all  the  personal 
property  should  be  taken  care  of  by  Clark  at  his  own  cost  and  expense ; 
and  Clark  also  resided  upon  the  land,  and  had  a  famil)-,  for  which  a 
portion  of  his  current  expenses  were  incurred;  and  all  the  goods,  wares, 
merchandise,  and  chattels  purchased  b\'  Clark  from  Larkin  were  pur- 
chased for  Clark,  and  not  for  Burton  ;  and  the  sums  of  nione}-  to  be  fur- 
nished by  Burton  to  Clark  were  to  be  furnished  as  loans  to  Clark,  and 
not  to  purchase  anything  or  to  pa}-  for  anything  for  Burton's  benefit, 
except  as  aforesaid. 

The  jiidgme?it  of  the  court  below  as  between  Burton  and  Larkin  will  be 
reversed,  and  the  cause  remanded  for  further  procceditigs. 

All  the  justices  concurring.  ^ 

lln  Austin  v.  Seligman,  before  the  U.  S.  Circuit  Court,  S.  D.,  N.  Y.,  in  1SS3  (iS  Fed.  Rep. 
519),  Wallace,  J.,  delivering  the  opinion,  said:  "Unless  the  plaintiff  can  recover  in 
assumpsit  upon  the  promise  made  by  the  defendants  to  Kempt  &  Co.,  to  assume  all  the 
debts,  obligations,  and  liabilities  of  the  latter,  the  complaint  fails  to  show  a  cause  of  action. 
"  He  was  not  a  party  to  the  contract,  nor  did  its  consideration  move  from  him,  and  there  is 
nothing  in  its  terms  to  indicate  that  it  was  intended  to  be  made  for  his  benefit.  The  case 
thus  presents  the  much-vexed  question  as  to  the  right  of  a  third  person  to  maintain  assump- 
sit upon  a  contract  which  may  inure  to  his  benefit,  but  to  which  he  is  not  a  party.     .     . 

"  It  will  not  be  profitable  to  attempt  to  collate  the  authorities  upon  the  general  question. 
In  England  it  is  now  distinctly  established,  so  far  as  aiiy  common  law  right  of  action  is  con- 
cerned, that  a  third  person  can  not  sue  on  a  contract  made  by  others  for  his  benefit,  even  if 
the  contracting  parties  have  agreed  that  he  may;  (Poll.  Cont.  196,)  while  in  both  Massachu- 


EMMITT    V.    HROPHY.  293 


KMMITT  v.  BROPHY. 

Supreme  Court  of  Ohio,  January  Term,   1884. 

[42  O.  S   82.] 

Error  to  the  District  Court  of  Pike  County, 

Prior  to  October,  1866,  the  "Scioto  Bridge  Company  "  became  a  body 
corporate,  located  within  Pike  County,  Ohio,  formed  for  the  purpose, 
among  other  things,  of  building  and  maintaining  a  toll  bridge  across 
the  Scioto  River  in  that  county.  It  built  the  bridge,  owned  it,  and  was 
taking  tolls  for  its  use,  when,  at  the  October  term,  1866,  of  the  common 
pleas  of  Pike  County,  Brophy  and  Potter,  the  defendants  in  error, 
obtained  a  judgment  against  the  company  for  $483.75  damages,  and 

setts  antl  New  York  the  later  decisions  limit  more  strictly  the  exceptions  to  the  general 
rule  that  the  person  must  sue  to  whom  the  promise  is  made.  Neither  in  these  decisions  nor 
elsewhere  in  this  countrj-,  has  the  English  rule  been  recognized.  It  has  the  merit  of  sim- 
plicity, but  is  artificial  instead  of  being  reasonable.  According  to  good  sense  and  upon 
principle  there  is  no  reason  why  a  person  may  not  maintain  an  action  upon  a  contract, 
although  not  a  party  to  it,  when  the  parties  to  the  contract  intend  that  he  may  do  so.  The 
formal  or  immediate  parties  to  a  contract  are  not  always  the  persons  who  have  the  most 
substatitial  interest  in  its  performance.  Sometimes  a  third  person  is  exclusively  interested 
in  its  fulfillment.  If  the  parties  choose  to  treat  him  as  the  primary  party  in  interest,  they 
recognize  him  as  a  pri\->'  in  fact  to  the  consideration  and  promise.  And  the  result  of  the  better 
considered  decisions  is  that  a  third  person  may  enforce  a  contract  made  by  others  for  his 
benefit,  whenever  it  is  manifest  from  the  nature  or  terms  of  the  agreement  that  the  parties 
intended  to  treat  him  as  the  person  primarily  interested.  The  cases  of  Hendrick  v.  Lindsay 
and  National  Bank  v.  Grand  Lodge,  and  the  expressions  in  the  opinions,  do  not  antagonize 
Upon  this  proposition  but  accord  with  it.  The  language  of  Folger,  J.,  in  Simson  v.  Brown, 
68  N.  Y.  355,  may  be  adopted  as  a  correct  and  accurate  statement  of  the  law,  as  follows  : 

"  '  It  is  not  every  promise  made  by  one  to  another,  from  the  performance  of  which  a 
benefit  may  inure  to  a  third,  which  gives  a  right  of  action  to  such  third  person,  he  being 
neither  pri\-y  to  the  contract  nor  to  the  consideration.  The  contract  must  be  made  for  his 
benefit  as  its  object,  and  he  must  be  the  party  intended  to  be  benefited.' 

"There  is  a  class  of  cases  where  under  a  contract  between  two  persons,  property  has 
come  to  the  hands  of  one  of  them,  which  in  equity  is  charged  with  a  lien  or  trust  in  favor 
of  a  third  person,  in  which  the  latter  may  sue  in  his  own  name  upon  the  promise  to  dis- 
charge the  lien  or  assume  the  trust.  These  cases  have  no  proper  application  to  a  case  like 
the  present,  where  a  copartnership  transfers  its  assets  to  a  purchaser,  and  the  only  interest 
of  the  plaintiff  is  that  of  a  creditor  at  large  of  the  selling  partners.  Such  creditors  have 
no  lien  for  their  debts  upon  the  partnership  as-^ets  except  in  cases  of  insolvency  or  admin- 
istration. Colly.  Partn.  §  Sg^;  Story,  Part.  §g  35S,  360,  Crippen  v.  Hudson,  13  N.  Y.  i6i.  If 
upon  such  a  transfer  the  purchaser  assumes  to  pay  certain  specified  creditors  or  certain 
enumerated  debts  of  the  seller,  it  may  be  fairly  urged  that  the  parties  contemplate  a  direct 
liability  to  the  specified  creditor  on  the  part  of  the  purchaser.  On  the  other  hand,  when 
the  agreement  is  silent  respecting  any  specific  obligation  to  be  assumed  to  a  third  person, 
the  natural  inference  is  that  it  was  intended  primarily  for  the  benefit  of  the  promisee,  and 
to  adjust  the  rights  and  duties  of  the  parties  as  between  themselves. 

"  Applying  this  criterion  to  the  case  in  hand,  the  plaintiff  can  not  maintain  assumpsit  upon 
the  agreement  set  forth  because  there  is  no  recognition  of  any  liability  to  him,  and  nothing 
to  indi.ate  that  any  claim  of  his  was  present  to  the  contemplation  of  the  parties.  The 
demurrer  is  sustained." 

"It  will  serve  no  useful  purpose,"  said  Brown,  P.  J.,  delivering  the  opinion  of  the  Gen- 
eral Term  of  the  Supreme  Court  of  New  York  in  IVainwright  v.  Queens  County  Water  Co. 
(1894),  78  Hun,  146.  149,    "  to  renew  the  discussion  that  has  existeJ  upon  this  rule  since  the 


294  IN   WHOSE   NAME   THE    ACTION  SHOULD   BE   BROUGHT. 

$218.50  costs.  On  this  judgment  $55  ^^'^s  paid;  and  $98.40  increased 
costs  were  made  in  vain  attempts  to  collect  the  balance.  Brophy  and 
Potter  levied  execution  upon  the  bridge,  and  had  it  appraised  and 
advertised  for  sale  by  the  sheriff.  The  bridge  could  not  be  sold.  No 
part  of  the  judgment  could  be  made  against  the  company  by  the  ordi- 
nary process.  Pending  the  levy  Brophy  &  Potter  commenced  an 
action  in  the  same  court  tor  the  appointment  of  a  receiver  to  collect  the 
tolls  for  application  upon  the  judgment. 

Pending  the  latter  proceedings,  in  1869,  the  general  assembly  author- 
ized county  commissioners  to  purchase  toll  bridges  and  make  them 
free.  By  virtue  of  this  enactment,  the  Scioto  Bridge  Company  sold  its 
bridge  to  the  commissioners  of  Pike  County  for  the  sum  of  $18,000,  and 
it  was  made  a  free  bridge.  As  an  inducement  to  the  commissioners  to 
purchase  the  bridge  and  make  it  free,  and  as  a  part  of  the  consideration 

decision  of  Lawrence  v.  Fox,  20  N.  Y.  268.  Many  cases  in  which  that  principle  has  been 
applied  seem  to  be  in  conflict  with  the  rule  that  in  an  action  upon  a  contract,  privity  of  con- 
tract must  exist  between  the  parlies.  But  when  the  third  party  was  specifically  named  in 
the  contract,  or  the  promisor  received  money  or  property  which  he  agreed  to  pay  over  to  the 
third  party,  who,  by  adopting  the  contract  became  a  beneficiary  thereunder,  or  where  the 
promisee  was  under  a  legal  obligation  to  the  third  person,  which  the  promisor  assumed  as 
his  own  and  thus  connected  himself  with  the  transaction,  privity  of  contract  by  adoption 
was  spelled  out. 

"  But  it  is  now  settled  that  to  bring  a  case  within  the  rule,  the  contract  must  not  only  be 
beneficial  to  the  third  party,  but  it  must  have  been  intended  for  his  benefit  by  the  contract- 
ing parties,  ^tna  Nat.  Bank  v.  Fourth  Nat.  Bank,  46  N.  Y.  82;  Garnsey  v.  Rogers,  47  N.  Y. 
233;    Vrootnan  v.  Turner,  69  N.  Y.  2S0,  (given  in  the  text,  infra). 

"  In  many  cases  where,  as  in  the  one  before  the  court,  the  performance  of  the  agreement 
would  be  beneficial  to  third  persons,  recoveries  have  been  denied  because  the  agreement 
was  not  specially  intended  for  the  benefit  of  those  suing  thereon.  Turk  v.  Ridge,  at- '^■^■ 
207;  Merrill  v.  Green,  55  N.  Y.  270;  Simson  v.  Btoiun,  6S  N.  Y.  355.  This  case  can  not,  there- 
fore, I  think,  be  brought  wichin  the  rule  applicable  to  promises  made  for  the  benefit  of 
third  parties." 

In  the  case  noted,  Wain-uright  v.  Queens  County  Water  Co.,  the  complaint  alleged  that 
the  agreement  upon  which  the  plaintiff  sued  [an  agreement  upon  the  part  of  the  defendant 
Water  Company  with  a  "fire  district"]  "had  been  entered  into  with  the  defendant  .  . 
for  the  ben  fit  of  the  residents  and  tax-payers  within  said  fire  district  arirf/tr  the  benefit  of 
these  plaintiffs.'''  And  on  the  demurrer  the  plaintiffs  claimed  that  this  allegation  was  one 
of  fact,  and  therefore  admitted  by  the  demurrer.  But  said  the  Court,  "  the  substance  of  the 
resolution  of  the  bo  ;rd  of  supervisors  and  the  agreement  entered  between  the  parties  is 
set  forth  in  the  second  and  third  paragraphs  of  the  complaint.  No  individu  il  tax-payer  is 
named  in  the  agreement,  nor  is  it  therein  stated  to  be  for  their  benefit.  Nor  did  the  defend- 
ant agree  to  extinguish  fires;  and  it  is  clear,  I  think,  that  the  allegation  is  a  conclusion 
solely  from  the  fact  that  its  performance  by  the  defendant  would  inure  to  the  benefit  of 
the  plaintiff  and  other  tax-payers  of  the  district.  This  is  not  sufficient  to  bring  the  case 
within  the  rule  that  when  a  promise  is  made  by  one  person  for  the  benefit  of  another,  it 
may  be  enforced  at  the  suit  of  the  latter."— /if r  Brown,  P.  J.,  p.  149. 

A  judgment  overruling  the  demurrer  was  therefore  reversed  and  the  demurrer  sustained. 

vSo,  also,  Buckley  v.  Gray  (1S95),  no  Cal.  339:  "  It  is  claimed,  however,  that  the  action  can 
be  maintained  under  the  rule  expressed  in  \  1559  of  our  Civil  Code,  that  a  contract  made  by 
one  per.son  foi  the  benefit  of  a  third  may  be  enforced  by  the  latter.  .  .  But  in  our  judg- 
ment that  provision  has  no  application  to  this  case.  It  is  intended  to  apply  to  instances 
where  the  contract  is  made  expressly  for  the  benefit  of  the  third  person,  not  where  the  third 
peison  is  or  may  be  merely  incidentally  or  remotely  benefited  as  the  re.sult  of  such  con- 
tract. Such  is  the  language  of  the  code,  and  such  will  be  found  to  be  the  application  of  the 
doctrine  in  all  the  cases  cited  by  counsel,  or  which  have  come  to  our  attention." — Per  Van 
Fleet,  J.  (p.  346). 

Accord  3.\%o:   Welden  National  Bank  v.  Smith  (1898),  86  Fed.  Rep.  39S,  402., 


EMM  ITT    V.    BROPHY.  295 

of  the  purchase,  the  plaintiff  in  error,  James  Emmitt,  who  owned  a  con- 
trolling interest  in  the  bridge  company  and  received  the  entire  sum  of 
$18,000,  was  required  by  the  commissioners  and  did  give  his  bond  to 
the  state  of  Ohio,  as  nominal  obligee,  "for  the  use  and  benefit  of  Pike 
County,"  in  the  sum  of  $5,000. 

"The  county  commissioners  of  the  said  county  of  Pike,  have  this  day  pur- 
chased the  Scioto  bridge  of  the  owners  thereof,  and  the  above  bound  James 
Emmitt,  being  the  principal  stockholder  and  chief  owner  of  said  bridge,  for  his 
own  behalf,  and  to  induce  the  said  commissioners  to  make  said  purchase,  and  as 
part  and  parcel  of  the  terms  of  said  purchase,  has  agreed  with  the  said  com- 
missioners, to  the  performance  of  which  he  hereby  binds  himself to  pay 

off  and  liquidate  all  claims  and  demands,  lietis  and  debts,  zvhethcr  in  judgment 
or  otheriuisc,  existing-  against  said  bridge,  so  that  the  full  use  of  said  bridge 
may  inure  to  the  public  without  let  or  hindrance.  And  as  a  further  inducement 
to  said  commissioners  to  make  such  purchase,  the  said  Emmitt  binds  himself,  to 
guaranty,  and  does  hereby  guaranty  to  the  said  Pike  County  the  full,  free,  undis- 
turbed, and  peaceable  use  of  the  said  Scioto  Bridge,  together  with  all  its  privi- 
leges, appurtenances,  fixtures,  franchises,  and  approaches. 

"And  whereas,  the  said  county  commissioners,  on  behalf  and  for  the  use  of 
said  Pike  County,  do  pay  in  hand  to  the  owners  of  said  bridge  the  full  amount 
of  the  purchase  price  thereof,  the  said  Emmitt,  in  consideration  thereof  and  of 
all  the  premises,  binds  himself  to  the  faithful  performance  of  all  the  conditions 
foregoing,  within  a  reasonable  time  from  the  date  hereof  ;  and  upon  the  failure 
of  the  said  Emmitt  to  perform  any  of  said  conditions,  said  bond  becomes  forfeit 
and  may  be  immediately  enforced  ;  and  upon  a  faithful  performance  of  all  of 
said  conditions  said  obligation  becomes  void.  " 

This  bond  was  executed  and  delivered  November  8,  1870. 

Emmitt  and  the  commissioners  had  full  knowledge  of  the  judgment^ 
the  levy,  and  all  the  proceedings  thereunder  of  Brophy  &  Potter  at  the 
time  this  bond  was  made  and  delivered. 

At  the  February  term,  1880,  of  the  court  of  common  pleas,  the  judg- 
ment of  Brophy  &  Potter,  being  wholly  unsatisfied  except  as  to  the  $55 
paid  upon  it,  was  caused  by  them  to  be  revived.  On  April  10,  1880, 
Brophy  &  Potter  filed  their  petition  in  the  court  below,  setting  forth 
the  foregoing  facts,  that  the  judgment  was  still  wholly  unpaid,  except 
the  $55,  and  prayed  judgment  against  Emmitt  for  the  unpaid  balance  of 
their  judgment  against  the  bridge  company,  their  costs,  and  the  interest 
thereon.  Emmitt 's  demurrer  to  this  petition  was  overruled,  and  he 
excepted.  He  then  answered,  setting  up  seven  different  grounds  of 
defence,  all  of  which  were  demurred  to  by  the  plaintiffs.  The  de- 
murrers were  sustained,  and  he  excepted.  He  then  interposed,  as  an 
eighth  defence,  that  the  plaintiffs  had,  prior  to  their  action,  transferred 
their  judgment  to  one  Alfred  Yaple,  upon  which  issue  was  joined  and 
found,  on  trial,  to  be  with  the  plaintiffs.  The  court  rendered  judgment 
against  Emmitt  for  the  unpaid  balance  of  the  judgment,  including 
original  and  increased  costs  and  interest  on  the  judgment  and  original 
costs. 


296  IN   WHOSE   NAME   THE   ACTION  SHOULD   BE   BROUGHT. 

The  overruling  of  the  demurrer  to  the  petition,  the  sustaining  of  the 
demurrer  to  the  first  seven  defences,  the  rendition  of  judgment,  and 
awarding  interest  on  the  costs,  are  severally  assigned  for  error.  The 
district  court  affirm  the  judgment  below,  and  to  reverse  these  judg- 
ments the  present  proceeding  is  prosecuted. 

John  T.  Moore  &  Son,  for  plaintiff  in  error. 

Alfred  Yaple  an6.John  W.   Washbiirne,  for  defendant  in  error. i 

Owen,  J. — It  would  be  unprofitable  to  discuss  in  detail  the  several 
supposed  defences  below,  for  they  nearly  all  assume  the  vital,  central 
fact  that  Brophy  and  Potter  had  a  valid  claim  against  the  bridge  com- 
pany, and  a  valid  lien  upon  the  bridge  at  the  time  of  its  purchase  by 
the  commissioners.  These  supposed  defences  mostly  proceed  upon  the 
assumption  that  whatever  liability  Emmitt  assumed  by  his  bond  was 
collateral  to  that  of  the  bridge  company,  and  aver  that  the  plaintiffs 
had  failed  to  invoke  or  pursue  other  remedies  and  securities  within  their 
reach.  If  Emmitt  by  his  bond  became  principally  and  primarily  liable 
to  Brophy  and  Potter,  they  had  their  election  of  remedies  and  this  is 
decisive  against  him  of  each  ground  of  defence.  In  other  words,  if  the 
facts  alleged  in  the  petition  constitute  a  cause  of  action  against  him, 
they  are  not  avoided  by  anything  alleged  in  the  answer.  From  the 
facts  apparent  upon  the  record,  including  the  recitals  of  Emmitt 's  bond, 
we  are  at  liberty  to  infer  that  he  was,  practically,  the  bridge  company; 
that  the  other  stockholders  were  such  simply  to  vitalize  the  corpora- 
tion, their  interest  in  which  was  but  nominal. 

In  his  first  defence,  Emmitt  avers  that : 

"In  the  month  of  May,  A.  D.  1868,  an  act  of  the  general  assembly  of  the 
state  of  Ohio  was  duly  passed,  became  a  law,  went  into  immediate  effect  and 
continued  in  force  until  the  year  A.  D.  1880  ;  which  act  authorized  the  said 
plaintiffs  and  empowered  them  to  levy  upon  and  sell  said  bridge  on  execution 
issued  upon  the  judgment  recited  in  their  petition  in  this  case,  and  by  virtue  of 
said  act  said  plaintiffs  did  cause  execution  to  be  issued  upon  said  judgment  and 
levied  the  same  upon  said  bridge,  zuhich  levy  zaas  si/bsisiing-  and  in  full  force 
at  the  time  said  bridge  coTupany  sold  a7id  transferred  said  bridge  to  the  com- 
missioners of  Pike  County,  who  purchased  the  same  regardless  of  said  levy,  and 
immediately  caused  said  bridge  to  be  used  by  the  traveling  public  without  pay- 
ment of  tolls,  and  caused  the  same  to  be  and  remain  thenceforth  in  every  respect 
a  free  bridge. " 

This  averment  is  abundantly  justified  bj-  the  act  referred  to  (65  O. 
L.  136).  The  plaintiffs  had,  by  their  levy,  acquired  a  lie7i  7cpon  the 
bridge.  By  the  express  conditions  of  the  bond,  Emmitt  agreed  to 
"pay  off  and  liquidate  all  claims  and  demands,  liens,  and  debts, 
whether  in  judgment  or  otherwise,  existing  against  said  bridge.'' 

These  facts  are  strongly  suggestive  that  it  entered  into  the  contem- 
plation of  the  parties  to  this  bond  at  the  time  of  its  execution,  that 
this  particular  lien  of  the  plaintiffs  upon  the  bridge  was   to   be   dis- 

1  The  arguments  are  omitted. 


KMMITT    :'.    BROPHY.  297 

charged  by  Emmitt.  Its  existence  was  known  to  them,  and  they  seem 
to  have  left  nothing  to  conjectnre.  Indeed,  if  Brophy  and  Potter  had 
been  expressly  named  as  the  lien-holders,  it  is  difficult  to  see  how  this 
would  have  added  to  the  definiteness  of  the  bond,  or  made  more  certain 
the  intention  of  the  parties.  This  seems  to  be  a  conclusive  answer  to 
the  suggestion  that  there  is  a  want  of  privity  between  the  immediate 
parties  to  the  bond  and  the  plaintiffs,  which  is  chiefly  relied  upon  by 
Emmitt  as  a  defence.  It  is  settled  in  this  state  that  an  agreement 
made  on  a  valid  consideration  by  one  person  with  another,  to  pay 
money  to  a  third,  can  be  enforced  by  the  latter  in  his  own  nanie.^ 

Nor  need  he  be  named  especially  as  the  person  to  whom  the  money  is 
to  be  paid.     Coster  v.  Mayor,  43  N.  Y.  411. 

And  the  law  regards  that  as  certain  which  points  to  the  sources  of 
authentication  or  identification;  a  principle  which  applies  with  special 
force  to  this  bond. 

The  proposition  that  the  rule  invoked  against  Emmitt,  is  confined  in 
its  operation  to  simple  and  unsealed  contracts,  is  not  well  founded.'-^ 

The  plea  of  the  statute  of  limitations  is  equally  untenable.  The 
action  was  properly  prosecuted  upon  the  written  instrument  which 
evidenced  Emmitt 's  liability. 

In  his  "  fifth  defence,  "  Emmitt  avers  that  long  prior  to  the  filing  of 
the  plaintiif's  petition  herein,  he  contended  that  he  was  not  bound  to 
pay  the  judgment,  utterly  refused  to  pay  it,  and  "rescinded  said  alleged 
promise. "  A  rescission  of  the  contract  sued  upon  by  the  parties  to  it, 
prior  to  the  plaintiffs  assenting  to  it,  would  have  been  a  good  defence.^ 
But  the  rescission  contemplated  by  this  principle  is  one  by  the  parties, 
whereas  the  averment  of  Emmitt  is  that  he  refused  to  pay  the  judg- 
ment and  he  rescinded  the  promise.  It  was  not  in  his  power  to  do  this. 
The  term  "rescinded,  "  as  he  employs  it,  is  convertible  with  "  repudi- 
ated. "  It  was  as  easy  for  him  to  repudiate,  as  singly  to  rescind  his 
promise. 

The  plaintiff's  election  to  proceed  upon  the  bond  is  denied.  Their 
action  was  such  election.  What  effect  this  election  may  have  haa  upon, 
their  claim  against  the  bridge  company,  or  against  the  bridge,  is  not 
before  us  for  determination. 

The  defendant  further  relies  upon  the  failure  of  the  plaictifFs  to  assert 
their  rights  within  a  reasonable  time,  and  allowing  nine  years  to  elapse 
before  filing  their  petition.  The  duty  of  the  plaintiffs  to  sue  was  no 
more  urgent  than  that  of  Emmitt  to  pay.  Wherein  he  was  more  preju- 
diced by  their  withholding  their  action  than  they  were  by  his  with- 
holding their  money  is  not  apparent.     There  having  been  no  change  in 

1  Citing  Crumbaugh  v.  Kugler,  3  Ohio  St.  549:  Bagaley  v.  Waters,  7  Ohio  St.  367;  Trimble 
V.  Strother,  25  Ohio  St.  381 ;  Thompson  v.  Thompson,  4  Ohio  St.  333. 

2  Citing  Coster  v.  Mayor,  43  N.  Y.  411;  McDowell  v.  l,eav,  35  Wis.  171;  Rogers  r.  Gosnell, 
51  Mo.  466. 

3  Citing  Trimble  v.  Strother,  25  Ohio  St.  37S;  Brewer  :■.  Mauei ,  3S  Ohio  St.  554;  Crowell  v. 
Hospital  of  St.  Barnabas,  27  N.  J.  Eq.  650. 


298  IN  WHOSE   NAME   THE   ACTION   SHOULD   BE   BROUGHT. 

the  status  either  of  the  parties  or  the  contract,  the  statute  of  limita- 
tions furnished  the  only  legal  test  of  promptness  in  asserting  their 
rights  under  the  bond.     In  the  action  of  the  court  upon  the  demurrers 

there  was  no  error.  ^ 

Judgmeyit  affirmed ^ 


CONSTABLE    v.    NATIONAL    STEAMSHIP    COMPANY. 

Supreme  Court  of  the  United  States,  May  26,   1894. 

[154  U.  S.  51.] 

This  was  a  libel  in  admiraltj'  bj-  the  firm  of  Arnold,  Constable  &  Co. 
against  the  National  Steamship  Company,  owner  of  the  British  steam- 
ship Egypt,  to  recover  the  value  of  thirtj'-six  cases  of  merchandise 
carried  by  this  steamer  from  Liverpool  to  New  York,  delivered  on  the 
pier  of  the  Inman -Steamship  Company  on  January  31,  1883,  and  upon 
the  same  night  destro^-ed  bj'  fire  through  the  alleged  negligence  of 
the  respondent.  The  answer  admitted  most  of  the  material  allegations 
of  the  libel,  but  denied  all  charges  of  negligence,  and  also  of  liability 
for  the  loss  of  the  merchandivSe. 

Upon  a  hearing  on  pleadings  and  proof  in  the  District  Court,  the  libel 
was  dismissed  (29  Fed.  Rep.  184),  and  upon  appeal  to  the  Circuit  Court 
the  decree  was  affirmed. 

Libellants  thereupon  appealed  to  this  court ^ 

Mr.  Joseph  H.  Choate,  for  appellants.  J/r.  William  V.  Rowe  and 
Mr.  Treadwell  Cleveland  were  with  him  on  his  brief 

IQnly  so  much  of  the  opinion  is  given  as  relates  to  the  one  point. 

2  The  de  d  to  a  tract  of  land  purchased  of  one  Moore  by  a  syndicate  was  made  to  a  third 
person,  who  gave  his  notes,  secured  by  a  deed  of  trust,  for  the  balance  of  the  purchase 
money,  but  under  an  agreement  in  a  decla'ation  of  trust  between  himself  and  the  mem- 
bers of  the  .syndicate  that  they  would  be  indivi  iually  responsible  each  to  a  certain  extent 
for  the  payment  of  these  notes.  The  owner  of  the  i.otes  knew  nothing  of  this  agreement 
when  he  took  the  notes.  Afterwards  he  brought  suit  in  his  own  name  upon  that  agreement 
against  a  member  of  the  syndicate;.  Said  the  Court:  "In  order  that  the  holder  may  maintain 
the  action  it  must  appear  that  the  promise  by  the  defendant  to  paj'  one-fifth  of  the  balance 
of  the  purchase  money  was  made  for  the  benefit  of  the  person  entitled  thereto.  Neither 
Moore  nor  Mrs.  Parker  [to  whom  Moore  assigned  the  notes]  knew  anything  of  the  exist- 
ence of  the  declaration  of  trust  before  the  assignment  of  the  notes  to  her,  but  this  makes 
no  difference  if  the  contract  was  made  for  the  benefit  of  the  person  entitled  to  the  purchase 
money.  .  .  Defendant  not  only  knew  from  other  sources  that  the  property  was  purchased 
from  Moore  for  the  sj-ndicate,  the  amount  to  be  paid  therefor,  the  amount  of  cash  pay- 
ment, and  how  and  when  the  deferred  payments  were  to  be  made,  but  all  these  facts  sub- 
stantially appear  from  the  recitals  in  the  declaration  of  trust,  and  sufficiently  show  that  he 
was  really  the  only  person  intended  to  be  or  that  could  in  fact  be  benefited  by  the  clause 
therein  contained  by  which  defendant  agreed  and  bound  himself  to  contribute  and  pay 
when  due  one-fifth  of  the  unpaid  monej'  for  said  ]iropertj',  and  brinj;  Moore,  or  the  assignee 
of  the  notes,  within  the  rule  which  permits  a  person  for  whose  benefit  an  express  promise 
is  made  in  a  valid  contract  between  others  to  maintain  an  action  upon  it  in  his  own  name.'" 
—Per  Burgess,  J.,  in  Porter  v.  Woods  (1897),  138  Mo.  539,  553-4.— £"(f. 

3  Part  of  the  statement  of  facts  is  omitted. 


CONSTABLI-;    :■■    NATIONAL  STEAMSHIP   COMPANY.  299 

Mr.  James  C.  Carter,  for  appellee.  A  brief  for  the  same  was  also  filed 
by  Mr.  John  diet  wood. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

This  case  involves  the  liability  of  a  steamship  company  for  the  loss  by 
fire  of  a  consignment  of  goods  unloaded  without  personal  notice  to  the 
consignees  upon  the  wharf  of  a  company  other  than  the  one  owning 
the  vessel ' 

Upon  the  facts  of  this  case  exhibiting  a  necessity  for  a  discharge  else- 
where than  at  her  own  pier,  and  in  the  absence  of  any  evidence  that  the 
libellants  were  prejudiced  by  the  failure  of  the  Egypt  to  discharge  at  her 
usual  wharf,  we  think  there  was  no  breachof  duty  on  the  part  of  the 
respondent  in  this  particular. 

Another  serious  question,  however,  is  presented  by  the  proviso  in 
the  application  to  allow  the  unpermitted  cargo  to  remain  upon  the 
wharf,  viz.,  that  it  should  remain 

"at  the  sole  risk  of  owners  of  said  steamer,  who  will  pay  the  consignee  or 
owner  the  value  of  such  cargo  respectively  as  may  be  stolen,  burned,  or  other- 
wise lost,  and  who  will  also  pay  all  duties  on  cargo  which  may  be  in  any  way  lost 
by  so  remaining." 

It  seems  that,  upon  the  arrival  of  a  transatlantic  steamer,  it  is  usual 
to  apply  for  and  obtain  a  general  order  to  allow  to  be  landed  and  sent 
to  the  public  store  (not  the  warehouse  on  the  wharf)  all  packages  for 
which  no  special  permit  or  order  shall  have  been  received  ;  also,  a  per- 
mit to  allow  such  portion  of  the  cargo  as  is  unladen,  but  not  permitted, 
to  remain  upon  the  wharf  for  forty-eight  hours  from  the  time  of  the 
granting  of  the  above  general  order,  at  the  expiration  of  which  time 
they  are  sent  to  the  proper  general  order  store  ;  and  also  a  special  license 
to  permit  the  cargo  to  be  unladen  at  night.  These  orders,  licenses,  and 
permits  are  granted  in  pursuance  of  the  general  regulations  of  the 
Treasury  Department. 

Granting  that  the  request  made  by  the  company  is,  upon  its  face, 
broad  enough  to  impose  upon  the  company  the  responsibility  for  goods 
lost  by  fire,  it  must  be  construed  in  connection  with  the  following  stipu- 
lation upon  the  same  subject  in  the  bill  of  lading,  viz.: 

"The  goods  to  be  taken  from  alongside  by  the  consignee  immediately  the  ves- 
sel .:,  ready  to  discharge The  collector  of  the  port   being   hereby 

authorized  to  grant  a  general  order  for  discharge  immediately  after  entry  of  the 
ship.  The  United  States  Treasury  having  given  permission  for  goods  to  remain 
forty-eight  hours  on  wharf  at  New  York,  any  goods  so  left  by  consignee  will  be 
at  his  or  their  risk  of  fire,  loss,  or  injury." 

Some  criticism  is  made  upon  the  words  "so  left  by  consignee, "  libel- 
lants insisting  that  the  word  ' '  left  ' '  implies  a  voluntary  leaving  of  the 
cargo  upon  the  wharf  after  notice  of  the  discharge  of  the  same  has  been 

1  Part  of  the  opinion,  reviewing  the  evidence,  is  omitted. 


300  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    EliOUGHT. 

received  by  the  consignee.  We  are  not  inclined,  however,  to  affix  to  it 
such  a  technical  meaning.  In  view  of  the  fact  that  the  object  of  the 
stipulation  was  evidentlj^  to  exempt  the  carrier  from  responsibil- 
ity for  fire  occurring  at  any  time  after  the  discharge  of  the- 
cargo,  and  particularly  during  the  forty-eight  hours  they  were  permit- 
ted to  remain  upon  the  wharf  which  forty -eight  hours,  under  the  terms 
of  the  permit,  began  to  run  from  the  time  of  the  general  order  to  unload 
was  granted,  we  think  it  clear  that  it  was  intended  to  apply  during  this 
time,  whether  the  goods  were  technically  ' '  left  ' '  by  the  consignee  or 
not,  and  that  the  proviso  should  be  interpreted  as  if  it  read :  ' '  The 
United  States  Treasur^^  having  given  permission  for  goods  to  remain 
forty-eight  hours  on  wharf  at  New  York,  any  goods  so  remaining  will  be 
at  consignee's  risk  of  fire,  loss,  or  injury."  This  permission,  though 
granted  at  the  request  of  the  ship-owner  and  primarily  for  his  benefit, 
is  really  of  more  value  to  the  consignees,  since  a  convenient  opportunity 
is  there  afforded  them  to  examine  their  goods,  and  they  are  saved  the 
expense  of  cartage  to  a  bonded  warehouse  and  storage  therein. 

The  question  presented  then  is  substantially  this  :  A  and  B  agree 
that  in  a  certain  contingency  A  shall  assume  the  risk  of  the  loss  of  his 
goods  by  fire.  Subsequently  B  agrees  with  C  that,  in  precisely  the 
same  contingency,  he  shall  be  responsible  to  A  for  the  loss  of  the  same 
goods.  Waiving  the  question  whether  this  means  any  more  than  that 
he  shall  be  responsible  so  far  as  C  is  concerned,  does  the  latter  contract 
supersede  the  earlier  ?  Unquestionably  it  would,  if  it  were  between  the 
same  parties.  In  this  case,  however,  the  first  contract  was  made  by  B 
(the  respondent)  in  full  contemplation  of  the  fact  that  it  would  be 
obliged  to  enter  into  the  second,  and  for  the  special  purpose  of  providing 
against  it.  Now,  to  say  that,  having  entered  into  the  fir.st  contract, 
knowing  that  it  would  have  to  enter  into  a  second  one  wholly  inconsist- 
ent with  the  first  and  intendingtobeboundbyit,  is  scarcely  creditable  to 
the  intelligence  of  its  agent.  Libellants,  too,  though  parties,  or  rather 
privies  to  the  first  contract,  were  not  parties  to  the  second,  and  so  far  as 
it  appears  did  not  even  know  that  it  was  or  would  be  entered  into, 
except  as  they  may  have  known  a  general  usage  to  protect  officers  in 
this  manner.  The  position  of  the  parties  had  not  changed  in  the  inter- 
val ;  no  new  consideration  moved  from  the  libellants ;  and  while  the 
contract  was  nominally  made  for  their  benefit,  this  gift  of  the  collector 
was  purely  a  voluntary  one.  Indeed,  the  contract  seems  realh'  to  have 
been  for  the  protection  of  the  collector  himself.  Under  these  circum- 
.stances  it  is  clearly  the  dut}'  of  this  court  to  harmonize  these  contracts, 
if  it  be  possible  to  do  so. 

It  is  by  no  means  a  universal  rule  that  a  person  may  sue  on  a  contract 
made  for  his  benefit,  to  which  he  was  not  a  party. ^    No  casehas  gone  so 

1  Citing,  Hendrick  v.  L,indsay,  93  U.  S.143;  National  Bank  v  Grand  I,odge,  98  U.  S.  123; 
Keller  v.  Ash  ford,  133  U.  S.  610 ;  Cragin  v.  Novell,  109  U.  S.  194  ;  Willard  v.  Wood,  135  tt.  S. 
309- 


CONSTA15LH    :.'.    NATIONAL  STEAMSHIP   COMPANY.  301 

far  as  to  hold  that,  where  the  person  for  whose  benefit  the  contract  is 
made,  has  himself  or  by  his  privy  in  estate  entered  into  a  contract  incon- 
sistent with  this,  he  may  repudiate  such  prior  contract,  and  claim  the 
benefit  of  the  second  simply  because  it  has  become  for  his  interest  to  do 
so.  We  know  of  no  principle  which  authorizes  one  party  to  an  agree- 
ment to  vary  it,  even  against  his  own  interest,  without  the  consent  of 
the  other.  As  obser\'ed  by  the  Court  of  Appeals  of  New  York,  in  Sim- 
son  V.  Brown,  68  N.  Y.  355  :  "  It  is  not  every  promise  made  by  one  to 
another,  from  the  performance  of  which  a  benefit  may  inure  to  a  third, 
which  gives  a  right  of  action  to  such  third  person,  he  being  neither 
privy  to  the  contract  nor  to  the  consideration.  The  contract  must  be 
made  for  his  benefit  as  its  object  and  he  must  be  the  party  intended  to  be 
benefited."  See  also  National  Bank  v.  Gra?id  Lodge,  98  U.  S.  123; 
Garnsey  v.  Rogers,  47  N.  Y.  233. 

The.  principle  above  announced  was  still  further  limited  by  the  Court 
of  Appeals  in  Vrooman  v.  Turner,  69  N.  Y.  280, '  in  which  it  was  said 
that,  to  give  a  third  party,  who  may  derive  a  benefit  from  the  perform- 
ance of  a  promise  an  action,  there  must  he— first,  an  intent  b}-  the  prom- 
isor to  secure  some  benefit  to  the  third  party  ;  and,  secottd,  some  priv- 
ity between  the  two,  the  promisor  and  the  party  to  be  benefited, 
and  some  obligation  or  duty  owing  from  the  promisor  to  the  latter, 
which  would  give  him  a  legal  or  equitable  claim  to  the  benefit  of  the 
promise,  or  an  equivalent  to  him  personally. 

It  is  necessary  to  a  correct  understanding  of  this  contract  to  examine 
somewhat  in  detail  the  circumstances  under  which  it  was  entered  into, 
and  the  authority  under  which  the  collector  acted  in  prescribing  its 
terms.  By  Revised  Statutes,  sections  2867  and  2869,  general  authority 
is  given  to  the  collector  to  authorize  the  unloading  of  vessels  arriving 
wuthin  the  limits  of  their  collection  districts,  and  to  grant  a  permit  to 
land  the  merchandise.  By  section  2966  the  collector  is  authorized  to 
take  possession  of  such  merchandise,  and  deposit  the  same  in  bonded 
warehouses,  and  by  section  2969  all  merchandise  of  which  the  collector 
shall  take  possession  under  these  provisions  shall  be  kept  with  due  and 
reasonable  care  at  the  charge  and  risk  of  the  owner.  By  section  2871 
the  collector,  ' '  upon  or  after  the  issuing  of  a  general  order, ' '  (for  the 
unloading  of  the  cargo)  "shall  grant,  upon  proper  application  there- 
for, a  special  license  to  unlade  the  cargo  of  said  vessel  at  night,  tliat  is 
to  say,  between  sunset  and  sunrise,"  upon  a  bond  of  indemnity  being 
given,  etc.,  "and  an}'  liability  of  the  master  or  owner  of  any  such 
steamship  to  the  owner  or  consignee  of  any  merchandise  landed  from 
her  shall  not  be  affected  by  the  granting  of  such  special  license  or  of 
any  general  order,  but  such  liabilit}-  shall  continue  until  the  merchan- 
dise is  properly  removed  from  the  dock  whereon  the  same  may  be 
landed. " 

1  Given  in  text,  infra. 


302  IN    WHOSE    NAME    THE   ACTION   SHOULD    BE    BROUGHT. 

There  is  certainly  nothing  here  which  contemplates  that  the  owner 
of  the  vessel  shall  enter  into  any  independent  obligation,  assuming 
new  liabilities  or  expanding  in  any  way  existing  liabilities,  to  the  con- 
signee. The  object  of  the  statute  is  clearly  to  preser\-e  the  stahi  quo  ; 
to  continue  such  liability  as  already  exists  and  to  preclude  the  ship 
owner  from  claiming  that,  by  the  action  of  the  collector,  his  liability  to 
the  owner  of  the  merchandise  is  impaired  or  restricted.  In  the  lan- 
guage of  the  statute,  any  previous  liabilit}-  "shall  not  be  affected", 
' '  but  such  liability  shall  continue  until  the  merchandise  is  properly 
removed  from  the  dock  whereon  the  same  may  be  landed. " 

It  is  true  that  no  mention  is  here  made  of  the  power  of  the  collector 
to  allow  the  unpermitted  cargo  to  remain  forty-eight  hours  upon  the 
wharf,  and  no  such  power  is  expressly  given  ;  but  by  section  2989  ' '  the 
Secretary  of  the  Treasury  may  from  time  to  time  establish  such  rules 
and  regulations,  7iot  inconsistent  with  law,  for  the  due  execution  of  the 
provisions  of  this  chapter,  and  to  secure  a  just  accountability  under 
the  same  as  he  maj'  deem  to  be  expedient  and  necessarj-. "  While  there 
is  nothing  in  the  statute  allowing  any  fixed  time  to  elapse  between  the 
unlading  of  the  goods  and  their  removal  to  a  bonded  warehouse,  the 
statute  does  not  prohibit  such  time  being  allowed,  and  as  some  inter\'al 
must  necessaril}'  elapse  for  the  examination  and  appraisement  of  the 
goods  designed  for  immediate  delivery  to  the  importer — duties  which 
can  most  readily  be  performed  while  the  goods  are  yet  on  the  wharf — 
and  as  it  is  for  the  mutual  benefit  of  the  government  and  consignee  to 
allow  some  such  interval  of  time  to  elapse,  the  Secretary-  of  the  Treas- 
ury is  doubtless  vested  with  a  certain  discretion  in  that  particular, 
under  the  power  given  him  by  section  2989,  and  also  by  section  251, 
which  authorizes  him  to  make  rules  and  regulations  not  inconsistent 
with  law  in  carrj-ing  out  the  provisions  of  law  relating  to  raising  rev- 
enue from  imports. 

In  pursuance  of  this  authority  the  Secretary  of  the  Treasury,  on  May 
5,  1877,  adopted  certain  regulations  concerning  the  discharge  of  steam- 
ships, of  which  the  following  only  is  material : 

"Goods  will  be  delivered  from  the  docks  by  the  inspector  as  fast  as  permits 
therefor  are  presented,  and  such  as  are  discharged  for  which  no  delivery  permit 
has  been  received  will  be  sent  to  the  general  order  store.  The  collector  may,  at 
the  request  of  the  master,  agent,  or  owner  of  the  vessel,  allow  goods  landed  but 
not  '  permitted  '  to  remain  on  the  docks  at  the  sole  risk  of  the  owner  of  the  vessel, 
not  longer  than  forty-eight  hours  from  the  time  of  their  discharge,  upon  the 
production  of  evidence  that  the  owner  of  the  vessel  assumes  the  risk  of  the 
goods  allowed  to  remain  and  agrees  to  pay  the  duties  on  any  goods  which  may 
be  lost  by  so  remaining.  This  request  must  be  made  in  writing  to  the  collector, 
and  must  state  that  if  the  permission  is  granted  the  goods  will  be  at  the  risk 
of  the  owner  of  the  vessel;  that  he  will  pay  all  duties  on  the  goods  that  may  be 
lost,  and  must  be  signed  by  the  owner  of  the  vessel  or  his  agent  duly  author- 
ized.    The  consent  of  the  collector  thereto  must  also  be  granted  in  writing.     At 


CONSTAliLE    V.    NATIONAL   STKAMSHIl'    COMPANY.  303 

the  expiration  of  the  forty-eight  hours,  no  permit  having  been  received  for  their 
delivery  by  the  inspector,  the  collector  shall  send  the  goods  to  the  general  order 
store  to  have  the  same  weighed  or  guaged,  if  required." 

In  this  connection  it  must  be  borne  in  mind  that  the  vSecretary  of  the 
Treasury  is  an  officer  of  the  Government  ;  that  his  powers  are  limited 
by  law  ;  that  his  duty  is  to  protect  the  revenues  of  the  government  and 
to  prevent  smuggling  or  other  illegal  practices,  whereby  the  govern- 
ment may  be  defrauded  of  its  revenue ;  and  that  he  owes  no  duty  to 
individuals  beyond  seeing  that  their  rights  are  not  prejudiced  any  fur- 
ther than  is  necessary  by  the  action  of  the  customs  officers.     He  is 
neither  the  agent  of  the  vessel  nor  of  the  importer,  but  stands  between 
them,  representing  only  the  government  and  charged  only  with  the 
collection   of  its  revenue.     The  above  regulation  when  carefully  exam- 
ined, is  consistent  with  this  view.     It  requires  the  collector  to  allow 
the  goods  to  remain  upon  the  docks  "  at  the  sole  risk  of  the  owner  of 
the  vessel,"  and  requires  the  latter  to  assume  "the  risk  of  the  goods 
allowed  to  remain,  "  and  to  agree  "  to  pay  the  duty  on  any  goods  which 
may  be  lost  by  so  remaining. "    It  is  obvious  from  the  context  that  the 
risk  referred  to  is  the  risk  as  between  the  owner  of  the  vessel  and  the 
government,  viz.,  the  risk  of  paying  duties  upon  such  goods  as  may  be 
lost  during  the  forty-eight  hours.     The  permit  is  granted  primarily  for 
the  benefit  and  at  the  request  of  the  vessel,  which  retains  its  lien  for 
freight  for  the  goods  so  long  as  they  remain  upon  the  dock.     The  gov- 
ernment has  as  yet  no  claim  for  duties  against  the  consignee  of  the 
goods,  and  it  is  just  that  the  owner  of  the  vessel  should  assume  the 
liability  for  duties.     There  is  nothing  here  indicating  an  intention  of 
imposing  any  liability  upon  the  shipowner  for  the  goods  themselves, 
except  so  far  as  to  protect  the  government  from  loss.     The  loss  referred 
to  is  probably  a  loss  by  theft,  to  which  these  warehouses  are  peculiarly 
subject,  since,  if  the  goods  were  destroyed  by  fire,  the  consignee  would, 
under  section  2984,  be  entitled  to  an  abatement  or  refund  of  duties. 
This  construction  of  the  shipowner's  obligation  is  rather  emphasized 
than  otherwise  by  the  subsequent  clause  of  the  regulation  :   ' '  This  re- 
quest must  be  made  in  writing  to  the  collector,  and  must  state  that  if 
the  permission  is  granted  the  goods  will  be  at  the  risk  of  the  owner  of 
the  vessel ;  that  he  will  pay  all  duties  on  goods  which   may  be  lost," 
etc.     The  risk  he  thus  assumes  is  the  risk  of  paying  duties  on  goods 
which  may  be  lost.     There  is  nothing  in  these  instructions,  interpreted 
in  the  light  of  the  statute  and  of  the  powers  of  the  collector,  to  justify 
the  inference  that  it  was  intended  to  impose  any  new  or  different  obli- 
gations upon  the  owner  of  the  vessel,  with  respect  to  the  consignees 
of  the  merchandise. 

In  the  forms  prescribed,  probably  by  the  department,  to  carry  out 
these  regulations,  hov.-ever,  there  is  an  apparent  departure  both  from 
the  language  of  the  statute  and  the  Treasury  regulations  in  the  obli- 
gation the  owner  of  the  vessel  is  required  to  assume, — 


304  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

"to  pay  to  the  consignee  or  owner  the  value  of  such  cargo  respectively  as  may 
be  stolen,  burned,  or  otherwise  lost,  and  also  pay  all  duties  on  cargo  which  may 
be  in  any  way  lost  by  so  remaining. 

Here  the  obligation  to  indemnify  the  consignee  first  appears  and  occu- 
pies the  most  prominent  place,  and  is  extended  to  goods  stolen,  burned, 
or  otherwise  lost,  while  the  obligation  to  pay  duties  is  mentioned 
rather  incidentally  than  othenvise.  Wherever,  or  b}^  whomsoever 
these  forms  were  prepared,  we  must,  for  the  purposes  of  this  case, 
treat  them  as  the  act  of  the  collector,  who,  if  this  contract  be  construed 
as  intended  for  the  protection  of  any  one  but  the  collector  himself, 
clearly  exceeded  his  authority  in  requiring  the  owner  of  the  vessel  to 
assume,  as  against  the  consignee,  the  risk  of  their  being  burned  while 
upon  the  wharf.  As  the  Circuit  Court  finds  that  ' '  such  application 
was  in  the  form  required  by  said  collector,  without  which  permit  would 
not  be  granted,  and  the  entire  cargo  would  be  sent  to  the  public  store, " 
it  can  not  be  treated  as  the  voluntary  act  of  the  shipowner  any  further 
than  this  contract  or  obligation  conformed  to  the  requirements  of  the 
statute  or  the  Treasurv^  regulations,  which  were  designed,  as  we  have 
already  stated,  only  to  preserve  the  previous  rights  of  the  consignee 
against  the  owner  of  the  steamship  unimpaired  by  the  action  of  the 
collector.  Be3'ond  this  it  must  be  treated  either  as  obtained  by  duress, 
or  so  plainly  inconsistent  with  the  previous  agreement  of  the  parties 
mter  sese  as  to  be  of  no  avail  to  the  consignee. 

It  is  a  familiar  doctrine  in  this  court  that  a  bond  or  other  obligation 
extorted  b}'  a  public  ofiicer,  under  color  of  his  ofiice,  can  not  be  en- 
forced, and  the  remarks  of  this  court  in  the  case  of  Utiiied  States  v. 
Tingey,  5  Pet.  115,  129,  are  pertinent  in  this  connection.  In  this  case 
the  Navy  Department  caused  a  form  of  bond,  not  prescribed  by  law,  to 
be  prepared  and  transmitted  to  one  Deblois,  a  person  to  whom  the  dis- 
bursement of  public  moneys  was  intrusted  as  purser,  to  secure  fidelity 
in  his  official  duties,  with  a  condition  that  it  should  be  executed  by  him 
with  sufficient  sureties  before  he  should  be  permitted  to  remain  in 
office,  or  to  receive  the  pay  or  emoluments  attached  to  the  office.  "  The 
substance  of  this  plea,"  said  the  court,  "is  that  the  bond,  with  the 
above  condition,  variant  from  that  prescribed  by  law,  was,  under  color 
of  office,  extorted  from  Deblois  and  his  sureties,  contrary  to  the  statute, 
by  the  then  Secretarj^  of  the  Navy,  as  the  condition  of  his  remaining 
in  the  office  of  purser  and  receiving  its  emoluments.  There  is  no  pre- 
tence then  to  say,  that  it  was  a  bond  voluntarily  given,  or  that,  though 
different  from  the  form  prescribed  by  statute,  it  was  received  and  exe- 
cuted without  objection.  It  was  demanded  of  the  part}-,  upon  the  peril 
of  losing  his  office ;  it  was  extorted  under  color  of  office,  against  the 
requisitions  of  the  statute.  It  was  plainly  then  an  illegal  bond ;  for 
no  officer  of  the  government  has  a  right,  by  color  of  his  office,  to 
require  from  an}'  subordinate  officer,  as  a  condition  of  holding  office, 
that  he  should  execute  a  bond  with  a  condition  different  from  that  pre- 


CONSTABLE    :'.    NATIONAL    STrCAMSIIIP    COMPANY.  305 

scribed  by  law.  That  would  be,  not  to  execute,  but  to  supersede  the 
requisitions  of  law." 

A  distinction  is  drawn  in  this  class  of  cases  between  a  bond  compul- 
sorih'  executed,  as  in  the  case  under  consideration,  and  a  bond  or  other 
obligation  voluntarily  given  to  the  government  for  which  there  is  no 
statutory  authority.  In  this  latter  case  the  bond  has  been  held  to  be 
valid.  United  States  v.  Bradley,  lo  Pet.  343,  358;  United  States  v.  Hud- 
son. 10  Wall.  395. 

Upon  the  whole  case  we  are  of  opinion  : 

1.  That  the  stipulation  in  the  bill  of  lading  that  respondent  should 
not  be  liable  for  fire  happening  after  unloading  the  cargo  was  reason- 
able and  valid. 

2.  That  the  discharge  of  the  cargo  at  the  Inman  pier  was  not  in  the 
eyes  of  the  law  a  deviation  such  as  to  render  the  carrier  an  insurer  of 
the  goods  so  unladen. 

3.  That  if  an}'  notice  of  such  unloading  was  required  at  all,  the  bul- 
letin posted  in  the  custom-house  was  sufiicient  under  the  practice  and 
usages  of  the  port  of  New  York. 

4.  That  libellants,  having  taken  no  steps  upon  the  faith  of  the  cargo 
being  unladen  at  respondent's  pier,  w^ere  not  prejudiced  b}'  the  change. 

5.  That  the  agreement  of  the  respondent  with  the  collector  of  cus- 
toms to  pay  the  consignees  the  value  of  the  goods  was  not  one  of  which. 
the  libellants  could  avail  themselves  as  adding  to  the  obligations  of 
their  contract  with  respondent. 

The  decree  of  the  Circuit  Court  is  therefore  Affirmed. 

Mr.  Justice  Jackson,  with  whom  concurred  Mr.  Justice  Field 
and  Mr.  Justice  Gray,  dissenting.' 

I  In  his  dissenting  opinion,  Mr.  Justice  Jackson  remarked,  inter  alia,  as  follows: 
"In  the  light  of  these  findings  [by  the  Circuit  Court],  the  contract  of  the  parties  should 
be  interpreted  as  though  the  clause  in  question  had  read  as  follow.'^;  '  The  United  States 
Treasury  having  given  permission  for  goods  to  remain  forty -eight  hours  on  the  wharf  at 
New  York,  at  the  sole  risk  of  the  steamship  company,  and  upon  its  undertaking  to  pay  to 
the  consignee  or  owner  the  value  of  such  cargo  respectively  as  may  1  e  stolen,  burned,  or 
otherwi-se  lost  while  so  remaining,  now  it  is  understood  that  if  the  steamship  company 
avails  itself  of  this  regulation,  and  obtains  permission  for  the  consignment  to  remain  on 
the  wharf  for  forty-eight  hours  upon  said  terms,  its  risk  and  liability  for  losses  shall  onlj-con" 
tinue  and  remain  in  force  until  the  consignee  has  had  due  notice  and  opportunity  to  re:uove 
or  take  charge  of  the  goods;  and  if,  thereafter,  they  are  left  by  the  consignee,  it  will  be  at 
his  risk  of  fire,  loss,  or  injurj'.'  This  harmonizes  all  the  clauses,  aiid  is  alone  consistent 
\7ith  the  correlative  duties  .nnd  obligations  of  the  parties. 

"  It  is  not  material  to  the  present  case  to  determine  whether  the  regulations  of  the  Treas- 
ury Department,  set  out  in  the  eleventh  finding  of  the  court  below,  have  the  force  of  law, 
and  imposed  upon  the  steamship  company  the  duty  of  entering  into  the  stipulation  to  pay 
the  consignees  for  the  loss  of  the  goods  deposited  on  the  wharf  under  the  forty-eight  hour 
permit.  That  stipulation  was  entered  into  voluntarily  by  the  steamship  company.  There 
was  no  requirement  in  the  contract  of  affreightment  that  it  should  obtain  any  such  permit, 
and  it  can  not  be  properlj'  said  that  the  stipulation  which  it  entered  into  in  order  to  secure 
permission  for  the  goods  to  remain  forty-eight  hours  on  the  wharf,  was  inconsistent  with 
any  provision  of  the  law  or  regulations  of  the  Treasury  Department.  No  provision  of  the 
bill  of  lading  exempted  the  carrier  from  liability  for  loss  bj-  fire  that  might  happen  while 
the  goods  were  deposited  on  the  wharf  under  tl.e  forty-eigl.t  hour  permit,  and  no  reason 
appears  why  the  carrier  might  not  expressly  undertake  a  liability  which  the  law  would 


306  IN   WHOSE   NAME   THE   ACTION   SHOULD   BE   BROUGHT. 


THE  CINCINNATI,  HAMILTON  &  DAYTON  RAILROAD 
COMPANY  V.  METROPOLITAN  BANK. 

Supreme  Court  of  Ohio,  January  21,   1896. 

[54   O.  S.  60.] 

Error  to  the  Superior  Court  of  Cincinnati. 

The  action  below  was  by  the  plaintiff  in  error  against  the  defendant 
in  error  to  recover  on  a  bank  check.  The  petition  was  in  words  and 
figures  following  : 

"The  plaintiff  is  a  corporation  duly  organized  and  existing  under  the  laws 
of  the  state  of  Ohio.  The  defendant  is  a  corporation  duly  organized  and  existing 
under  the  laws  of  the  United  States. 

"There  is  due  to  the  plaintiff  from  the  defendant,  upon  a  check,  a  copy  of 
which,  there  being  no  credits  nor  endorsements  thereon,  is  hereto  attached, 
made  part  hereof,  and  marked  'Exhibit  A,'  the  sum  of  three  hundred  and 
thirty-eight  31-100  dollars  ($338.31),  with  interest  from  May  11,  1886.  The 
plaintiff  is  the  owner  and  holder  of  said  check,  and  on  May  11,  1886,  presented 
it  for  payment  to  the  defendant,  who  at  that  time,  and  at  the  time  of  the  draw- 
ing of  said  check,  had  funds  of  said  J.  E.  Ash  on  deposit,  more  than  sufficient  to 
pay  the  same,  but  the  defendant  refused  to  pay  said  check. 

otherwise  impose  upon  it,  until  by  proper  notice  the  duty  of  taking  care  of  the  goods  was 
shifted  or  transferred  to  the  consignees. 

"  But,  it  is  said,  the  consignees  can  not  avail  themselves  of  this  promise  made  by  the 
steamship  company  to  the  collector  because  they  are  not  privies  thereto.  This,  howe\  er, 
ignores  the  above  findings  of  fact  by  the  court,  which  make  the  consignees  parties  to  the 
arrangement.  Aside  from  this,  while  it  is  undoubtedly  the  general  rule  that  a  person  who 
is  not  a  party  to  a  simple  contract,  can  not  enforce  such  contract  at  law,  and  that  a  promise 
made  by  one  person  to  another  for  benefit  of  a  third,  who  is  a  stranger  to  the  considera- 
tion, will  not  support  an  action  by  the  latter.  National  Bank  v.  Grand  Lodge,  98  U.S.  123, 
there  are  many  exceptions  to  the  rule,  one  of  which,  according  to  the  New  York  decisions, 
is  where  the  party  seeking  to  enforce  the  contract  was  intended  to  be  the  beneficiary  of  the 
promise.  Laivrence  v.  Fox,  20  N.  Y.  26S;  Cosier  v.  Albany,  43  N.  Y.  399,  410,  412;  Garnsey  v. 
Rogers,  47  N.  Y.  233;   Vrooman  v.  Turner,  69  N.  Y.  280,  [given  in  text,  infra]. 

"The  promise  made  by  the  steamship  company  in  the  present  case  falls  directly  within 
the  rule  announced  in  Vrooman  v.  Turner,  69  N.  Y.  280,  there  being,  first,  a  clear  intent  by 
the  promisor  to  secure  a  benefit  to  the  consignees;  second,  a  privity  between  the  two  in 
respect  to  the  protection  of  the  goods,  the  risk  of  which  the  carrier  assumed;  and,  third,  ati 
obligation  or  duty  owing  by  the  steamship  company  to  the  consignees  to  properly  care  for 
the  goods  until  delivery  could  be  made,  which  gave  to  the  consignees  a  legal  and  equitable 
claim  to  the  benefit  of  the  promise.  The  decisions  in  other  states  are  conflicting  on  this 
question. 

"  But  if  an  action  at  law  would  not  lie  upon  the  promise  made  by  the  respondent  in  obtain- 
ing the  forty-eight  hour  permit,  it  by  no  means  follows  that  the  consignee  could  not  suc- 
cessfully invoke  the  aid  of  a  court  of  eqviity  in  enforcing  the  agreement.  The  legal  rule 
invoked  is  not  so  rigidly  or  so  strictly  adhered  to  by  courts  of  equity  as  by  courts  of  law. 
Thus,  in  Keller  v.  Ashford,  133  U.  S.  610,  625,  the  mortgagee  was  permitted  to  enforce  in 
equity  a  contract  between  the  mortgagor  and  his  grantee,  by  the  lerms  of  which  the  grantee 
assumed  the  payment  of  the  mortgaged  debt.  See  also  Willard  v.  Wood,  135  U.  S.  309,  314; 
Norwood  V.  DeHart,  3  Stewart,  (30  N.  J.  Eq.)  412.     .     ." 

Mr.  JtJSTicE  Field  and  Mr.  Justice  Gray  concurred  in  this  dissenting  opinion. 


KAII.KOAD    COMPANY    V.    BAXK.  307 

"Wherefore  the  plaintiff  prajs  judgment  against  the  defendant  for  said 
sum  of  S338.31,  with  interest  from  May  11,  18S6,  for  its  costs,  and  all  other 
relief  to  which  it  may  be  entitled. 

"EXHIBIT   'A.* 

"  Cincinnati,  ^[ay  10,  1886. 

*'  MetrofoUtan  National  Bank: 

"Pay  to  the  order  of  the  C.  H.  &  D.  R.  R.  Co..  three  hundred  and  thirty- 
eight  31-100  dollars. 

"S33S.31.  (Signed)  J.  E.   Ash." 

A  general  demurrer  was  interposed  by  the  bank,  and  the  holding  of 
the  superior  court  at  general  tenn  was,  in  effect,  to  sustain  the  demurrer. 
Judgment  for  the  bank  followed,  to  reverse  which  the  present  proceed- 
ing is  prosecuted. 

Ramsey,  Maxwell  &  Ramsey,  for  plaintiff  in  error. 

Pogue,  PottcJiger  &  Pogue,  for  defendant  in  error.  ^ 

Spear,  J. — The  question  presented  is  whether  or  not  a  payee  of  a 
bank  check  can  maintain  an  action  against  a  bank,  where  the  latter,  on 
presentation,  refuses  to  pay  it,  the  drawer  having  at  the  time  a  credit 
on  the  books  of  the  bank  more  than  sufficient  to  meet  the  check  ? 

Questions  bearing  some  relation  to  this  have  been  considered  by  this 
court,  but  the  precise  question  has  not  heretofore  been  determined. 

Authority  is  found  supporting  the  affirmative  of  this  proposition. 
The  grounds  urged  are  not  identical  in  all  cases,  nor  is  the  reasoning 
wholly  consistent,  but  the  following  is  believed  to  be  a  fair  resume  of 
the  conclusions  :  Because  of  the  universal  usage  of  banks  to  cash  the 
checks  drawn  by  a  depositor,  where  he  has  sufficient  unincumbered 
balance  standing  to  his  credit,  a  duty  is  implied  on  the  part  of  the  bank 
to  so  pay,  and  the  holder  takes  the  check  relying  upon  this  usage. 
Serious  injurv^  may  result  to  the  holder  by  the  bank's  refusal  to  pay, 
for,  while  he  may  have  an  action  against  the  drawer,  that  would  prove 
delusive  in  the  frequent  instance  of  the  drawer 's  insolvency,  and  the  bank 's 
wrongful  action  would  be  the  real  cause  of  the  loss.  The  law,  therefore, 
implies  a  contract  on  the  part  of  the  bank  with  its  depositors  to  pay 
their  checks  as  presented  so  long  as  the  fund  is  sufficient,  and  should, 
for  like  reasons,  impl}'  a  contract  with  whomever  ma}-  beconie  the 
holder  of  such  check  to  pay  on  presentation.  The  check  is  treated  as  an 
equitable  assignment  pro  tanto  of  the  fund  in  the  hands  of  the  bank, 
and,  by  the  act  of  presentation,  the  check-holder  is  brought  into  privit}' 
with  the  bank,  his  right  to  sue  completed,  and  he  may  sue  the  drawer 
and  the  bank  in  one  action,  the  former  as  drawer  and  the  latter  as  an 
implied  acceptor.  He  ma\-  also  stiethe  drawer  on  the  check's  dishonor, 
or  the  bank  for  money  had  and  received. 

Forcible  and  ingenius  arguments  in  support  of  the  right  to  maintain 
the  action  are  presented  by  Mr.  Morse,  in  his  valuable  work  on  Bank- 
ing, by  Mr.  Daniels  in  his  treatise  on  Negotiable  Instruments,  vol.  2, 

1  The  arguments  are  omitted. 


308  IN  WHOSE   NAME  THE   ACTION  SHOULD   BE   BROUGHT. 

section  1638,  where  the  arguments  pro  and  con  are  stated  and  ably 
reviewed,  and  by  a  number  of  decisions.' 

The  contrary  doctrine  is  maintained  by  many  text  writers  and 
decisions.  2 

It  is  not  doubted  that,  as  a  general  proposition,  there  can  be  no  cause 
of  action  upon  a  contract  unless  there  is  privity  of  contract  between 
the  obligor  and  the  party  complaining.  But  it  is  urged  in  argument 
here  that  while  the  want  of  privity  is  a  good  objection  to  the  action  in 
those  states  which  deny  the  right  of  a  third  party  for  whose  benefit  a 
contract  is  made  to  maintain  an  action  upon  it,  in  Ohio  the  objection  of 
want  of  privity  can  not  prevail  for  the  reason,  as  held  by  this  court  in  a 
number  of  cases,  that  an  agreement  made  on  a  valid  consideration  by 
one  person  with  another,  to  pay  money  to  a  third,  can  be  enforced  by 
the  latter  in  his  own  name,  and  that  the  third  person  is  not  named  does 
not  affect  the  right  to  enforce  it. 

The  most  recent  case  involving  this  principle  is  that  oi Emmitt  v.  Bro- 
phy,  42  Ohio  St.  82.  The  action  was  upon  a  bond  given  by  Emmitt  to 
the  county  commissioners  in  the  sale  of  a  bridge  by  the  Scioto  Bridge 
Co.,  in  which  Emmitt  obligated  himself  "to  pay  oif  and  liquidate  all 
claims  and  demands,  whether  in  judgment  or  otherwise,  existing 
against  said  bridge,  so  that  the  full  use  of  said  bridge  may  inure  to  the 
public  without  let  or  hindrance. "  Brophy  at  the  time  was  a  judgment 
creditor  and  the  owner  of  all  the  claims  enumerated  in  the  bond. 
Owen,  J.,  in  the  opinion,  after  reciting  the  facts,  observes:  "These 
facts  are  strongly  suggestive  that  it  entered  into  the  contemplation  of 
the  parties  to  this  bond  at  the  time  of  its  execution,  that  this  particu- 
lar lien  of  the  plaintiff  upon  the  bridge  was  to  be  discharged  by  Em- 
mitt. Its  existence  was  known  to  them,  and  they  seem  to  have  left 
nothing  to  conjecture.  Indeed,  if  Brophy  and  Potter  had  been  ex- 
pressly named  as  the  lien-holders,  it  is  difficult  to  see  how  this  would 
have  added  to  the  definiteness  of  the  bond,  or  made  more  certain  the 
intention  of  the  parties.  This  seems  to  be  a  conclusive  answer  to  the 
suggestion  that  there  is  want  of  privity.  " 

1  Some  of  thes  ■  decisions,  as  cited  by  the  court,  are  Munn  v.  Burch,  25  111.  35;  Insurance 
Co.  V.  Stanford,  28  111.  168;  Bank  v.  Bank,  80  111.  212  (but  see  opinion  in  Bank  r-.  Bank,  7 
Bissell,  U.  S.  195);  Roberts  v.  Corbin,  26  Iowa,  315;  l,ester  v.  Given,  8  Bush,  358;  Fogarties 
V.  Bank,  12  S.  C.  518;  Gordon  v.  Muchler,  34  I^a.  Ann.  608;  Fonner  v.  Smith,  31  Neb.  107. 

2 The  court  cited  the  following  as  some  of  the  authorities  on  this  point:  Randolph  on 
Commercial  Paper,  vol.  2,  p.  2S0;  Pomeroy's  Equity  Jurisprudence,  section  1284;  Van  Schaack 
on  Bank  Checks,  212;  Bank  ?'.  Millard,  10  Wallace,  152;  Bank  v.  Whitman,  94  U.  S.  3  3; 
Bank  v.  Schuler,  120  U.  S.  514;  Mining  Co.  v.  Brown,  124  U.  S.  391;  Bank  v.  Bank,  46  N.  Y. 
82;  Attorney  General  v.  Insurance  Co.,  71  N.  Y.  325;  Bullard  v.  Randall,  67  Mass.  605;  Carr 
V.  Bank,  107  Mass.  48;  Savior  v.  Bushong,  100  Pa.  St.  23;  Kuhn  v.  Bank,  11  Atl.  Rep.  (Pa.) 
440;  Bank  v.  Shoemaker,  117  Pa.  St.  94;  Creveling  v.  Bank,  46  N.  J.  l,aw,  255;  Moses  v.  Bank, 
^  Md.  580;  Purcell  v.  Allemong,  22  Grat.  742;  Harriscn  v.  Wright,  100  Ind.  538;  Grammel 
V.  Carmer,  55  Mich.  201;  Breman  v.  Bank,  62  Mich.  343;  Bush  v.  Foote,  58  Miss.  5;  Bank  v. 
Merritt,  7  Heisk.  177;  Pickle  v.  Muse,  88  Tenn.  380;  Cashman  v.  Harrison,  90  Cal.  297. 
Boettcher  v.  Bank,  15  Col.  16;  Satterwhite  v.  Melczer,  24  Pac.  Rep.  (Arizona),  184;  Hopkins 
V.  Forester,  I,.  R.  Eq.  74;  Wald's  Pollock  on  Contracts,  190,  204;  2  Ames'  Bills  and  Notes,  735 


KAILKOAD    COMPANY    7'.    BANK.  309 

No  one  of  the  cases  cited  carries  the  doctrine  farther  than  the  forego- 
ing.  In  no  one  of  them  is  it  held  that  a  right  to  sue  in  a  stranger  can 
be  raised  by  mere  implication.  Nowhere  is  it  held  that  the  obligation 
will  attach  in  favor  of  future  creditors  not  named  and  not  known,  and 
as  to  amounts  not  specified. or  then  ascertainable,  to  the  extent  of  giv- 
ing to  such  creditors  a  right  of  action  on  the  contract.  It  must  be 
apparent,  even  on  brief  reflection,  that  it  does  not  follow  from  these 
decisions  that  there  is  privity  between  check-holder  and  bank  before 
acceptance,  and  that  in  order  to  cover  the  case  at  bar  a  marked  exten- 
sion of  the  doctrine  must  be  made.  Reasons  urged  for  such  extension, 
however  plausible,  do  not  seem  sufficient. 

On  the  contrary,  strong  reasons  against  the  proposition  may  be 
adduced,  among  others,  this  :  The  transaction  of  giving  the  check  does 
not,  as  will  be  shown  further  on,  substitute  the  check-holder  for  the 
drawer.  The  latter  may  maintain  an  action  for  the  breach  of  the  con- 
tract to  honor  his  check,  and  if  the  holder  has  a  similar  right,  the  result 
is  that  two  persons  may  maintain  separate  actions  upon  the  same  instru- 
ment at  the  same  time  to  recover  against  the  same  defendant  as  a  prin- 
cipal debtor.  The  inference  that  the  right  to  recover  by  the  check- 
holder  is  denied  only  in  the  states  where  a  right  of  recovery  is  refused 
to  one  for  whose  benefit  a  contract  is  made  by  another,  arises  from  a 
misapprehension  of  the  authorities.  In  many  states  where  the  right  of 
a  check-holder  to  sue  the  bank  is  not  assented  to,  the  right  of  one  for 
whose  benefit  a  contract  is  made  to  recover  upon  it  is  recognized.  ^ 

It  is  insisted  that  the  case  should  not  turn  alone  on  the  legal  idea  of 
privity,  for,  under  our  system  of  procedure,  it  is  immaterial  whether 
the  interest  of  the  payee  against  the  bank  is  legal  or  equitable,  and  that 
the  action  here  may  be  maintained  on  equitable  grounds.  In  a  well 
considered  case.  Covert  v.  Rhodes,  48  Ohio  St.  66,  this  court  held  that 
' '  a  bank  check  or  draft  for  a  part  of  the  sum  due  the  drawer,  does  not, 
before  acceptance  by  the  drawee,  constitute  an  equitable  assignment  of 
the  amount  for  which  it  is  drawn. "  The  conclusion  is  amply  sustained 
by  the  reasoning  of  the  opinion,  and  no  discussion  is  necessary.  If 
there  is  no  equitable  assignment  of  the  debt  pro  tanto,  how  can  equita- 
ble considerations  prevail  ?  The  proceeding  is  not  an  equitable  one  ;  and 
if  it  were,  we  do  not  understand  that  equity  has  different  rules  from 
those  of  law  with  respect  to  the  rights  and  obligations  of  parties  to 
negotiable  paper.  As  applicable  to  such  case  we  believe  that  reason, 
and  the  great  preponderance  of  authority,  establish  the  following  con- 
clusions :  The  relation  of  bank  and  general  depositor  is  simply  the  ordi- 
nary one  of  debtor  and  creditor,  not  of  agent  and  principal,  or  trustee 

1  Citing,  Lawrence  v.  Fox,  20  N.  V.  268;  Burr  v.  Beers,  24  N.  Y.  17S;  Coster  v.  The  Maj'or, 
43  N.  Y.  399;  Merriman  v.  Moore,  90  Pa.  St.  78;  Huyler  v.  Atwood,  26  N.  J.  Eq.  504;  O'Neal  v. 
Commissioners,  27 'Md.  240;  Crawford  v.  Edwards,  33  Mich.  354;  MiUer  v.  Thompson,  34 
Mich.  10;  Heim  v.  Vogel,  69  Mo.  529;  Fitzgerald  v.  Baker.  70  Mo.  6S5;  Cross  v.  Truesdale,  28 
Ind.  44;  Brice  v.  King,  i  Head's  (Tenu.)  152;  Green  v.  Morrison,  5  Col.  18. 


310  IN   WHOSE   NAME   THE    ACTION  SHOULD   BE   BROUGHT. 

and  cestui  qzie  trust.  The  bank  agrees  with  its  depositor  to  receive  his 
deposits,  to  account  with  him  for  the  amount,  to  repay  to  him  on 
demand,  and  to  honor  his  checks  to  the  amount  of  his  credit  when  the 
checks  are  presented  ;  and  for  any  breach  of  that  agreement  the  bank  is 
liable  to  an  action  by  him.  The  deposits  become  the  absolute  property 
of  the  bank,  impressed  with  no  trust,  and  the  bank's  right  to  use  the 
money  for  its  own  benefit  is  immediate  and  continuous,  which  right 
constitutes  the  consideration  for  the  bank's  promise  to  the  depositor. 
The  bank 's  agreement  with  the  depositor  involves  or  implies  no  agree- 
ment with  the  holder  of  a  check.  The  giving  of  a  check  is  not  an 
assignment  of  so  much  of  the  creditor's  claim  ;  it  passes  no  title,  legal 
or  equitable,  to  the  holder  in  the  raone3's  previously  deposited,  nor  does 
it  create  a  lien  on  the  fund,  for  there  is  no  special  fund  out  of  which  the 
check  can  be  paid,  nor  does  it  transfer  anj-  money  to  the  credit  of  the 
holder ;  it  is  simply  an  order  which  ma}-  be  countermanded  and  pa}-- 
ment  forbidden  by  the  drawer  any  time  before  it  is  actuall}-  cashed  or 
accepted.  If  accepted,  then  the  agreement  is  to  pay  according  to  the  terms 
of  the  check  or  acceptance  ;  but  until  then  the  payee  looks  exclusively 
to  the  drawer.  He  can  maintain  no  action  against  the  bank,  for  the 
bank  owes  to  the  pa3-ee  no  legal  dut}',  and  an  action  at  law  can  not  be 
maintained  except  there  is  shown  to  have  been  a  failure  in  the  perform- 
ance of  legal  duty.  Being  liable  to  the  drawer  to  account  with  him  for 
failure  to  honor  his  check,  the  bank  can  not,  either  on  legal  or  equita- 
ble considerations,  be  held  at  the  same  time  liable  to  the  holder  of  the 
check. 

Tested  b\-  these  rules,  the  plaintiff  could  have  no  cause  of  action 
against  the  bank,  and  the  superior  court  committed  no  error  in  the 
judgment  rendered.  Judgment  affirmed. 


BAXTER  V.   CAMP. 

Supreme  Court  of  Connecticut,  November  29,  1898. 

[71   Conn.   245.] 

Action  to  recover  damages  upon  a  written  instrument  in  the  nature 
of  a  promissory  note,  or  for  other  proper  relief,  brought  in  the  Court  of 
Common  Pleas  of  New  Haven  County  and  tried  to  the  court.  The  facts 
were  found  and  judgment  rendered  for  the  plaintiff;  the  defendant  ap- 
peals for  alleged  errors  in  the  rulings  of  the  court. 

The  finding  showed  these  facts  :  The  defendant  was  married  after  1877 
to  Edith  E.  Smith,  who  then  had  one  child,  the  plaintiff.  She  fur- 
nished him  mone}'  to  use  in  his  business,  and  he  made  a  will  in  her 
favor.  She  expressed  a  fear  lest  he  might  change  it,  and  he  thereupon 
executed  and  delivered  to  her  the  following  paper : 


BAXTER   V.    CAMP.  311 

"  MadisoTi,  Jutie  20th,  i88j. 
"I  do  promise   to  pay  my  wife's  son.  Dwight  G.   Baxter,   the  sum  of  eight 
hundred  dollars  after  her  decease,   if   living,    if   not   to  her  next   heirs  to   the 
property,  without  interest  till  after  her  death.  Alexander  Camp." 

Afterwards,  on  finding  that  she  had  a  fatal  disease,  she  gave  the  pa- 
per to  the  plaintiff,  saying  the  defendant  would  pay  it  and  there  would 
be  no  more  trouble  about  it.  He  gave  no  consideration  to  the  defend- 
ant for  it.     After  her  death,  he  demanded  payment,  which  was  refused.  ^ 

Claims  were  made  by  the  defendant  and  overruled,  that  the  paper 
was  not  a  note,  that  no  indebtedness  existed  from  the  defendant  to  the 
plaintiff,  and  so  that,  if  any  action  would  lie,  it  must  be  one  by  the 
administrator  of  the  wife's  CvState. 

Henry  G.  Newton,  for  the  appellant  (defendant). 

Oswin  H.  D.  Fowler,  for  the  appellee  (plaintiff). 

Baldwin,  J. — The  main  question  in  this  case  is  whether  an  action 
upon  a  simple  contract,  by  the  performance  of  which  a  third  party 
would  receive  a  direct  benefit,  can  be  maintained  by  him. 

The  general  principles,  upon  the  application  of  which  the  answer 
must  depend,  are  well  settled.  Briefly  stated,  thej-  are  these :  An 
action  at  law  for  the  breach  of  a  contract  can  ovXy  be  brought  by  a 
party  to  the  contract.  It  rests  on  the  violation  of  an  obligation  to  the 
plaintiff  which  the  defendant  had  assumed  and  promised  him  to  per- 
form. If  the  contract  does  not  state  in  express  terms  to  whom  the 
promise  is  made,  the  law  declares  that  it  is  made  to  the  person  from 
whom  proceeded  the  consideration  by  which  it  is  supported.  Treat  v. 
Stant07i,  14  Conn.  445,  451.  If  it  names  a  party  to  the  contract  as  the 
promisee,  a  third  party  may  maintain  an  action,  the  contract  not  being 
under  seal,  on  proof  that  the  other  acted  in  the  transaction  merely  as 
his  agent ;  and  so  assumpsit  may  be  maintained  against  such  a  party, 
though  the  contract  with  the  agent  be  under  seal,  if  the  principal's 
interest  appears  upon  its  face,  and  he  has  accepted  the  benefit  of  its 
performance.     Briggs  v.  Partridge,  64  N.  Y.  357,  364. 

There  are  certain  classes  of  cases  which  are  often  treated  as  establish- 
ing exceptions  to  these  rules  of  decision,  but  which  can,  with  at  least 
equal  propriety,  be  deemed  illustrations  of  their  rightful  application 
under  exceptional  conditions. 

One  class,  found  mainly  in  the  older  English  reports  and  unsupported 
b}'-  the  later  ones,  springs  out  of  contracts  in  the  nature  of  marriages 
or  famil}'  settlements,  itnder  which  a  direct  benefit  is  secured  to  chil- 
dren or  other  near  relatives.  Here  the  unity  of  the  family  has  been 
taken  into  account,  and  the  consideration  of  marriage  deemed  to  extend 
to  its  issue. 

I  Part  of  the  statement,  referring  to  the  genuineness  of  the  defendant's  signature,  is 
omitted. 


312  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

Another  class  embraces  promises  of  a  certain  kind,  made  to  one  man 
for  the  direct,  sole,  and  exclusive  benefit  of  another.  Thus  C  may  sue 
for  money  paid  to  A  for  his  use  by  B,  when  it  was  part  of  their 
agreement  that  the  payment  and  its  object  should  be  communicated  to 
him.  Here  A  is  in  the  position  of  a  forwarding  agent  for  C,  and  when 
the  latter  is  informed  of  the  transaction  and  assents  to  it,  this  may 
be  properly  treated  as  a  ratification. 

There  are  other  instances,  including  bailments  in  trust  or  to  hold  for 
a  third  person,  under  circumstances  implying  the  assumption  of  a  spe- 
cific duty  toward  him,  that  can  not  be  brought  under  the  law  of  princi- 
pal and  agent,  under  which  an  equitable  action,  at  least,  can  be  sus- 
tained by  one  not  a  part}'  to  a  contract,  to  secure  its  benefits  ;  but  the 
remedy  can  never  be  pressed  bej-ond  the  right,  and  can  seldom,  if  ever, 
extend  to  a  stranger  to  the  consideration,  who  is  not  in  some  relation 
of  privity  with  the  nominal  promisee. ^ 

Unguarded  expressions  are  to  be  found  in  some  of  the  earlier  opinions 
of  this  court,  which  countenance  the  broad  proposition  that  where  a 
promise  is  made  to  one  man  for  the  benefit  of  another,  the  latter  may 
sustain  a  suit  upon  that  promise ;  but  no  such  doctrine  has  ever  been 
applied  to  govern  our  determination  of  a  cause.^ 

The  contract  which  is  the  foundation  of  this  suit  was  made  between  a 
husband  and  wife,  who  married  after  the  Act  of  1877,  General  Statutes, 
§  2796,  went  into  effect.  The  defendant  had  received  money  from  her 
to  use  in  his  business.  They  evidently  meant  bj^  this  paper  to  state  the 
amount  for  which  he  was  to  be  accountable ;  to  preclude  any  claim  for 
interest  upon  it  during  her  life ;  and  to  secure  it  upon  her  decease  to 
those  nearest  to  her  in  blood,  who  would  naturally  succeed  to  her  estate. 
The  sum  thus  ascertained  is  described  as  "property,"  and  in  the'event 
of  her  surviving  her  son,  was  to  pass  in  the  ordinary  lines  of  inherit- 
ance. Such  an  instrument  can  not  be  regarded  as  executed  for  the  direct, 
sole,  and  exclusive  benefit  of  the  plaintiff,  nor  5-et  as  in  the  nature  of  a 
family  settlement.  Its  immediate  object  was  to  protect  the  interests  of 
his  mother.  It  was  the  adjustment  of  an  unsettled  account,  followed 
by  provisions  designed  to  serve  the  purpose  of  a  testamentary  disposi- 
tion. It  does  not  appear  that  the  parties  to  the  agreement  intended  or 
contemplated  that  the  plaintiff"  should  be  informed  of  its  existence  dur- 
ing his  mother's  life.  It  does  appear  from  its  face  that  he  could  derive 
no  benefit  whatever  from  its  provisions,  should  he  not  survive  her.  The 
only  party  who  can  sue  at  law  for  a  failure  to  perform  it  is  the  personal 
representative  of  Mrs.  Camp  ;  and  the  claim  made  by  the  defendant  in 
the  Court  of  Common  Pleas  that,  if  any  such  action  would  lie,  it  must 
be  one  by  the  administrator  of  her  estate,  should  have  been  sustained. 

1  Citing,  Treat  -■.  Stanton,  14  ronn.  445  ;  Woodbury  Savings  Bank  v.  Charter  Oak  Ins. 
Co.,  29  id.  374  ;  Clapp  v.  l,awton,  31  id.  95  ;  Meech  v.  Knsign,  49  id.  191  ;  National  Bank  v. 
Grand  Lodge,  98  U.  S.  123  ;  Exchange  Bank  v.  Rice,  107  Mass.  37 ;  Tweddle  v.  Atkinson,  i  B. 
&  S.  393  ;  Pollock  on  Contracts,  Chap.  v. 

2  Citing,  Crocker  v.  Higgins,  7  Conn.  342  ;  Steene  v.  Aj-lesworth,  18  id.  244,  252. 


BAXTER    V.    CAMP.  313 

It  would  not  be  our  duty  to  order  a  new  trial  on  this  account,  if  the 
error  was  one  that  could  not  have  affected  the  appellant  injuriously. 
Public  Acts  of  1897,  p.  892,  §  15.  Such  would  be  its  character  if  the 
plaintiff  could  have  maintained  an  action  for  equitable  relief,  and  com- 
pelled the  defendant,  in  that,  to  account  to  him  for  an  amount  equal  to 
that  of  the  damages  which  he  has  recovered  in  the  judgment  appealed 
from.  But  to  any  such  action  the  administrator  of  Mrs.  Camp's  CvState 
would  be  an  indispensable  party,  and  we  can  not  say  that  in  one  brought 
by  him  or  in  which  he  was  made  one  of  the  defendants,  the  same  result 
would  have  been  reached.' 

There  is  error  and  a  new  trial  is  ordered. 

In  this  opinion  the  other  judges  concurred, 

1  Part  of  the  opinion  on  other  points  is  omitted. 


314  IN   WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 


(B).      Whether  There  Must  be  a  Duty  Owing  from  the  Promisee  to  the 
Third  Person  for   Whose  Benefit  the  Contract  is  Made. 

VROOMAN  V.  TURNER. 

Court  of  Appeals  of  New  York,  April.    1877. 

[69  N.   Y.   2S0.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
affirming  a  judgment  in  favor  of  plaintiff,  entered  upon  the  report  of 
a  referee.  1 

This  was  an  action  to  foreclose  a  mortgage,  executed  in  August,  1S73, 
by  the  defendant  Evans,  who  then  owned  the  mortgaged  premises.  He 
conve^-ed  them  to  one  Mitchell,  and  through  various  w^.y/2^  conveyances 
the  title  came  to  one  Sanborn.  In  none  of  these  conveyances  did  the 
grantee  assume  to  pay  the  mortgage.  Sanford  conveyed  the  premises 
to  the  defendant  Harriet  B.  Turner,  by  a  deed  which  contained  a  clause 
stating  that  the  conveyance  was  subject  to  the  mortgage, 

"which  mortgage  the  party  hereto  of  the  second  part  hereby  covenants  and 
agrees  to  pay  off  and  discharge,  the  same  forming  part  of  the  consideration 
thereof. " 

The  referee  found  that  said  grantee,  by  so  assuming  payment  of  the 
mortgage,  became  personalh'  liable  therefor,  and  directed  judgment 
against  her  for  any  deficiency.     Judgment  was  entered  accordingl}-. 

Edward  T.  Bartlett,  for  the  appellant. 

N.  H.  Clement,  for  the  respondent. ^ 

Allen,  J. — The  precise  question  presented  by  the  appeal  in  this  ac- 
tion has  been  twice  before  the  courts  of  this  state,  and  received  the  same 
solution  in  each. 

It  first  arose  in  King  v.  Whiteley,  10  Paige,  465,  decided  in  1843. 
There  the  grantor  of  an  equitj'  of  redemption  in  mortgaged  premises, 
neither  legally  nor  equitabl}'  interested  in  the  pa3-ment  of  the  bond  and 
mortgage  except  so  far  as  the  same  were  a  charge  upon  his  interest  in 
the  lands,  conveyed  the  lands  subject  to  the  mortgage,  and  the  convey- 
ance recited  that  the  grantees  therein  assumed  the  mortgage,  and  were 
to  pa}'  off  the  same  as  a  part  of  the  consideration  of  such  conve3'ance, 
and  it  was  held  that  as  the  grantor  in  that  conve^-ance  was  not  per- 
sonally liable  to  the  holder  of  the  mortgage  to  pay  the  same,  the 
grantees  were  not  liable  to  the  holder  of  such  mortgage  for  the  defi- 
ciency upon   a  foreclosure  and  sale  of  the  mortgaged  premises.    It  was 

1  Reported  below,   I'roontan  v.    Turner  (iS-5),  8  Hun,  78. 

2  The  arguments  are  omitted. 


VROOMAX    V.    TUKXEU.  315 

conceded  by  the  chancellor  that  if  the  grantor  had  been  personally 
liable  to  the  holder  of  the  mortgage  for  the  payment  of  the  mort- 
gage debt,  the  holder  of  such  mortgage  would  have  been  entitled  in 
equity  to  the  benefit  of  the  agreement  recited  in  such  conveyance,  to 
pay  off  the  mortgage  and  to  a  decree  over  against  the  grantees  for  the 
deficiency.  This  would  have  been  in  accordance  with  a  well  estab- 
lished rule  in  equity,  which  gives  to  the  creditor  the  right  of  subroga- 
tion to  and  the  benefit  of  any  security  held  by  a  surety  for  the  re- 
enforcement  of  the  principal  debt,  and  in  the  case  supposed,  and  by 
force  of  the  agreement  recited  in  the  conveyance,  the  grantee  would 
have  become  the  principal  debtor,  and  the  grantor  would  be  a  (/i/asi 
surety  for  the  payment  of  the  mortgage  debt.' 

A'zng-  V.  Whitely  was  followed,  and  the  same  rule  applied  hy  an  undi- 
vided court,  in  Trotter  v.  Hughes,  12  N.  Y.  74,  and  the  same  case  was 
cited  with  approval  in  Garnsey  v.  Rogers,  47  X.  Y.  233. 

The  clause  in  the  conveyance  in  Trotter  v.  Hughes  was  not  in  terms 
precisely  that  in  King  v.  Whitely,  or  in  the  grant  under  consideration. 
The  undertaking  by  the  grantees  to  pay  this  mortgage  debt  as  recited, 
was  not  in  express  terms,  or  as  explicit  as  in  the  other  convej-ances. 
But  the  recital  was,  I  think,  sufiicient  to  justify  the  inference  of  a  prom- 
ise to  pay  the  debt,  and  so  it  must  have  been  regarded  by  the  court. 

The  case  was  not  distinguished  by  the  court  in  any  of  its  circum- 
stances from  Kiiig  v.  Whitely,  but  was  supposed  to  be  on  all  fours  with 
and  governed  by  it.  Had  the  grantor  in  that  case  been  personall}-  bound 
for  the  pa\-ment  of  the  debt,  I  am  of  the  opinion  that  an  action  would 
have  been  sustained  against  the  grantee  upon  a  promise  implied  from 
the  terms  of  the  grant  accepted  b}-  him  to  pay  it,  and  indemnify  the 
grantor.  It  miist  have  been  so  regarded  by  this  court,  othenvise  no 
question  would  have  been  made  iipon  it,  and  the  court  wotild  not  have 
soserioush'  and  ablj-  fortified  and  applied  the  doctrine  of  A7;/^  v.  Whitely. 
A  single  suggestion  that  there  was  no  undertaking  b}-  the  grantee  and 
no  personal  liability  for  the  payment  of  the  debt  assumed  by  him,  would 
have  disposed  of  the  claim  to  charge  him  for  the  deficiency  upon  the 
sale  of  the  mortgaged  premises. 

The  rule  which  exempts  the  grantee  of  mortgaged  premises  svibject 
to  a  mortgage,  the  pa3-ment  of  w^hich  is  assumed  in  consideration  of 
the  conve3'ance  as  between  him  and  his  grantor,  from  liability  to  the 
holder  of  the  mortgage  when  the  grantee  is  not  bound  in  law  or  equity- 
for  the  paj-ment  of  the  mortgage,  is  founded  in  reason  and  principle, 
and  is  not  inconsistent  with  that  class  of  cases  in  which  it  has  been 
held  that  a  promise  to  one  for  the  benefit  of  a  third  party  maj^  avail  to 
give  an  action  directlj'  to  the  latter  against  the  promisor,  of  which 
Lawrence  v.  Fox,  20  N.  Y.  268,  is  a  prominent  example  To  give  a 
third  party  who  may  derive  a  benefit  from  the  performance  of  the  prom- 
ise, an  action,  there  must  be,  first,  an  intent  b}-  the  promisee  to  secure 

1  Citing,  Kalsey  :■.  Reed,  9  Paige,  446  ;  Curtis  v.  Tyler,  id.  432  ;  Burr  v.  Beers,  24  X .  Y.  17S. 


316  IX    WHOSE    NAME   THE    ACTION   SHOULD    BE    BROUGHT. 

some  benefit  to  the  third  party,  and,  second,  some  privity  between  the 
two,  the  promisee  and  the  party  to  be  benefited,  and  some  obligation  or 
duty  owing  from  the  former  to  the  latter  which  would  give  him  a  legal 
or  equitable  claim  to  the  benefit  of  the  promise,  or  an  equivalent  from 
him  personally. 

It  is  true  there  need  be  no  privity  between  the  promisor  and  the  party 
claiming  the  benefit  of  the  undertaking,  neither  is  it  necessary  that  the 
latter  should  be  privy  to  the  consideration  of  the  promise,  but  it  does 
not  follow  that  a  mere  volunteer  can  avail  himself  of  it.  A  legal  obliga- 
tion or  duty  of  the  promisee  to  him  will  so  connect  him  with  the  transac- 
tion as  to  be  a  substitute  for  any  privity  with  the  promisor,  or  the  consid- 
eration of  the  promise,  the  obligation  of  the  promisee  furnishing  evidence 
of  the  intent  of  the  latter  to  benefit  him,  and  creating  a  privity  by  sub- 
stitution with  the  promisor.  A  mere  stranger  can  not  interv^ene,  and 
claim  by  action  the  benefit  of  a  contract  betw^een  other  parties.  There 
must  be  either  a  new  consideration  or  some  prior  right  or  claim  against 
one  of  the  contracting  parties,  by  which  he  has  a  legal  interest  in  the 
performance  of  the  agreement. 

It  is  said  in  Garnsey  v.  Rogers,  47  N.  Y.  233,  that  it  is  not  every 
promise  made  by  one  person  to  another  from  the  performance  of  which 
a  third  person  would  derive  a  benefit  that  gives  a  right  of  action  to  such 
third  person,  he  being  privy  neither  to  the  contract  nor  the  considera- 
tion. In  the  language  of  Judge  Rapallo,  "to  entitle  him  to  an  action, 
the  contract  must  have  been  made  for  his  benefit.  He  must  be  the  party 
intended  to  be  benefited."  See  also  Turk  v.  Ridge,  41  N.  Y.  201,  and 
Merrill  v.  Green,  55  N.  Y.  270,  in  which,  under  similar  agreements, 
third  parties  sought  to  maintain  an  action  upon  engagements  by  the 
performance  of  which  they  would  be  benefited,  but  to  which  they  were 
not  parties,  and  failed.  The  courts  are  not  inclined  to  extend  the  doc- 
trine of  Laivrence  v.  Fox  to  cases  not  clearly  within  the  principle  of 
that  decision.  Judges  have  differed  as  to  the  principle  upon  which 
Lawrence  v.  Fox  and  kindred  cases  rest,  but  in  every  case  in  which  an 
action  has  been  sustained  there  has  been  a  debt  or  duty  owing  by  the 
promisee  to  the  party  claiming  to  sue  upon  the  promise.  Whether  the 
decisions  rest  upon  the  doctrine  of  agency,  the  promisee  being  regarded 
as  the  agent  for  the  third  party,  who,  by  bringing  his  action  adopts  his 
acts,  or  upon  the  doctrine  of  a  trust,  the  promisor  being  regarded  as 
having  received  money  or  other  thing  for  the  third  party,  is  not  mate- 
rial. In  either  case  there  must  be  a  legal  right,  founded  upon  some 
obligation  of  the  promisee,  in  the  third  party,  to  adopt  and  claim  the 
promise  as  made  for  his  benefit. 

In  Lawrence  v.  Fox  a  prominent  question  was  made  in  lijnine,  whether 
the  debt  from  Halley  to  the  plaintiff  was  sufficiently  proved  by  the  con- 
fession of  Halley  made  at  the  time  of  the  loan  of  the  money  to  the 
defendant.  It  was  assumed  that  if  there  was  no  debt  proved  the  action 
would  not  lie,  and  the  declaration  of  Halley  the  debtor  was  held  suffi- 


VKOOMAN   V.    TURNER.  VAl 

cient  evidence  of  the  debt.  Gray,  J.,  said  :  "All  the  defendant  had  the 
right  to  demand  in  this  case  was  evidence  which  as  between  Halley  and 
the  plaintiff  was  competent  to  establish  the  relation  between  them  of 
debtor  and  creditor."  In  Burr  v.  Beers,  24  N.  Y.  17S,  and  Thorp  v. 
Keokuk  Coal  Co.,  48  N.  Y.  253,  the  grantor  of  the  defendant  was  per- 
sonall}-  liable  to  pay  the  mortgage  to  the  plaintiff,  and  the  cases  were 
therefore  clearly  within  the  doctrine  of  Lawrence  v.  Fox,  Halsey  v. 
Reed,  9  Paige,  446,  and  Curtis  v.  Tyler,  9  Paige,  432.  See  also,  per  Bos- 
worth,  J.,  Doolittle  V.  Naylor,  2  Bos.  225,  ^n^Ford  v.  Davis,  i  Bos.  569. * 
It  is  claimed  that  King  v.  Whitely  and  the  cases  following  it  were 
overruled  by  Lawre?ice  v.  Fox.  But  it  is  very  clear  that  it  was  not  the 
intention  to  overrule  them,  and  that  the  cases  are  not  inconsistent.  The 
doctrine  of  Lawrence  v.  Fox,  although  questioned  and  criticised,  was 
not  first  adopted  in  this  state  by  the  decision  of  that  case.  It  was 
expressly  adjudged  as  earlj-  as  1825,  in  Farley  v.  Cleveland,  4  Cow.  432, 
affirmed  in  the  court  for  the  correction  of  errors  in  1827  per  totam  curiam, 
and  reported  in  9  Cow.  639.  The  chancellor  was  not  ignorant  of  these 
decisions  w^hen  he  decided  King  v.  IVhitely,  nor  was  Judge  Denio  and 
his  associates  unaware  of  them  when  Trotter  v.  Hughes  was  decided, 
and  Judge  Gray  in  Lawroice  v.  Fox  sa.ys  the  case  of  Farley  v.  Clevela?id 
had  never  been  doubted. 

1  In  Thorp  v.  The  Keokuk  Coal  Co.  (1872),  48  N.  Y.  253,  cited  in  the  text,  the  Keokuk  Coal 
Co.  had  accepted  a  deed  containing  a  clause  that  the  conveyance  was  subject  to  a  certain 
mortgage  made  by  the  grantor,  and  that  the  payment  of  that  mortgage  "is  hereby  assumed 
by  the  party  of  the  second  part  hereto."  Bj-  the  term-;  of  the  bonds  accompanying  the 
mortgage  it  was  made  a  condition  that  on  default  in  the  paj-ment  of  interest  or  principal 
recourse  must  be  first  had  to  the  land  mor  gaged,  and  that  the  obligors  should  only  be 
answerable  for  a  deficiency  after  foreclosure  and  sale.  The  bond  not  having  been  paid  when 
due,  the  mortgagee  sued  the  grantee  in  the  deed,  the  Keokuk  Coal  Co.,  without  instituting 
anj'  proceeding  to  foreclose.  Said  the  Court,  per  Earl,  C,  "This  brings  us  to  the  only 
other  question  in  the  case,  and  that  is  whether  the  plaintiff  could  recover  without  first  fore- 
closing his  mortgage.  In  the  deed  from  Franklin  t  ■  it,  the  defendant  ■  xpressly  assumed  to 
pay  the  plaintiff's  mor  gage,  and  this,  as  it  is  now  well  settled,  binds  the  defendant  to  the 
same  extent  as  if  it  had  also  signed  the  deed.  There  has  been  some  diversity  of  opinion  as 
to  the  ground  upon  which  the  liability  of  the  grantee  in  a  deed  in  .such  case  must  rest,  and 
it  has  finally  been  settled  that  it  ma3-  re.st  upon  the  doctrine,  that  where  one  person  makes 
a  promise  to  another  for  the  benefit  of  a  third  person,  the  third  person  may  maintain  an 
action  upon  it.  (Burrs  v.  Beers,  24  N.  Y.  178.)  In  such  a  case  it  is  not  needed  that  there 
should  be  any  consideration  passing  from  the  third  person.  It  is  sufficient  if  the  promise 
be  ma  e  by  the  promisor  upon  a  sufficient  consideration  passing  between  him  and  his  im- 
mediate promisee,  and  when  the  third  person  adopts  the  act  of  the  promisee  in  obtaining 
the  promise  for  his  benefit,  he  is  brought  into  privity  with  the  promisor,  and  he  may  enforce 
the  promise,  as  if  it  were  made  directly  to  him.     (Laiurence  v.  Fox,  20  N.  Y.  26S.) 

The  defendant,  for  a  sufficient  consideration  passing  between  it  and  Franklin,  agreed  to 
pay  the  amount  of  the  mortgage  debt  to  the  plaintiiT.  This  the  defendant  agreed  to  do 
personallj'  and  absolutely,  and  not  upon  condition  that  resort  should  first  be  had  to  the  land 
by  foreclosure  of  the  mortgage.  It  matters  not  that  the  mortgagor  was  not  liable  to  paj' 
personally  until  after  the  foreclosure,  and  that  he  was  then  liable  only  for  the  deficiencv. 
It  would  have  made  no  difference  if  he  had  not  been  liable  at  all,  the  defendnnt  having 
promised,  upon  a  sufficient  consideration,  to  pay  the  debt.  This  suit  is  not  primarily  upon 
the  bond  and  mortgaire,  but  upon  the  promise  of  the  defendant  to  pay  it  ;  and  this  promise 
binds  the  defendant  to  pay  the  mortgage  debt  as  it  falls  due,  according  to  the  terms  of 
the  l)ond  and  mortgage.  It  was  not  a  conditional  or  contingent  promise,  and  could  not  be 
discharged  by  paj-ment  only  of  a  portion  of  the  debt. 


318  IN   WHOSE   NAME   THE   ACTION   SHOU'LD   BE   BROUGHT. 

The  court  below  erred  in  giving  judgment  against  the  appellant  for 
the  deficiency  after  the  sale  of  the  mortgaged  premises,  and  so  much  of 
the  judgment  as  directs  her  to  pa}-  the  same  must  be  reversed  with 
costs. 

All  concur,  except  Earl,  J.,  dissenting. 

Judgjnent  accordingly. 


KELLER  V.  ASHFORD. 

United  States  Supreme  Court,  March  3,   1890. 

[133  U.  S   610.] 

This  was  a  bill  in  equity- b}-  Henrietta  C.  Keller,  the  holder  of  a  prom- 
issory note  for  $2,000,  made  b}'  one  Thompson,  secured  b}-  his  mortgage 
of  land  in  Washington,  against  Francis  A.  Ashford  as  grantee  of  the 
land  subject  to  this  mortgage,  and  who  by  the  terms  of  the  deed  to  him 
assumed  payment  of  incumbrances  on  the  land.  The  bill  praj-ed  for  a 
decree  in  the  plaintiff's  favor  against  Ashford  for  the  amount  of  that 
note,  and  for  general  relief.  The  case  was  heard  upon  pleadings  and 
proofs,  by  which  it  appeared  to  be  as  follows  : 

On  August  17,  1875,  Thompson,  being  seized  in  fee  of  lot  5  in  square 
889  in  the  city  of  Washington,  conveyed  it  to  one  Rohrer,  by  a  deed  of 
trust  in  the  nature  of  a  mortgage,  to  secure  the  payment  of  Thompson's 
promissory  note  of  that  date  for  $1,500,  payable  in  three  years  with 
interest  at  ten  per  cent,  held  by  one  Harkness. 

On  February  21,  1876,  Thompson  conveyed  the  same  lot  by  like  deed 
of  trust  to  one  Gordon,  to  secure  the  payment  of  Thompson's  note  of 
that  date  for  $2,000,  payable  in  one  year,  with  interest  at  eight  per  cent 
j^early  until  paid,  to  the  order  of  Moses  Kelly  ;  and  Kelly  endorsed  this 
note  for  full  value  to  the  plaintiff. 

On  Januar^^  i,  1877,  Thompson,  at  the  instance  and  persuasion  of 
Kelly,  executed  and  acknowledged  and  delivered  to  Kell}-  a  deed,  ex- 
pressed to  be  made  in  consideration  of  the  sum  of  $4,500;  conveying 
this  lot,  together  with  lots  6,  7  and  8  in  the  same  square  (each  of  which 
three  other  lots  was  also  in  fact  subject  to  a  mortgage  for  $2,000)  to 
Ashford  in  fee, 

"subject,  however,  to  certain   incumbrances  now   resting  thereon,  payment  of 
which  is  assumed  by  said  party  of  the  second  part  ;" 

and  containing  covenants  by  the  grantor  of  warranty  against  all  persons 
claiming  from,  under,  or  through  him,  and  for  further  assurance. 

At  the  date  of  this  deed,  the  onlj^  incumbrances  on  the  land  conveyed 
were  the  five  mortgages  above  mentioned,  and  some  unpaid  taxes 
assessed  again.st  Thomp.son  while  owner  of  the  land.  On  January  22, 
1877,  this  deed,  together  with  a  notary's  certificate  of  acknowledg- 


KELLER   t'.    ASHFORD.  319 

ment  by  the  grantor,  was  recorded  in  the  registry  of  the  District  of 
Columbia. 

At  the  taking  of  the  depositions  before  the  examiner,  the  plaintiff, 
having  given  notice  to  Ashford  and  to  Kelly  to  produce  the  original 
deed,  and  both  of  them  having  failed  to  do  so,  was  permitted,  against 
the  defendant's  objection,  to  put  in  evidence  a  copy  of  the  deed  and 
acknowledgment,  certified  by  the  recorder  to  be  a  true  copy. 

No  consideration  was  actually  paid  for  the  conveyance.  The  value 
of  the  lots  conveyed  was,  according  to  Thompson's  testimony,  $4,000 
each  or  $16,000  in  all,  or,  according  to  Ashford 's  testimony,  not  less 
than  $3,400  each  or  $13,600  in  all. 

Thompson  testified  that  he  never  had  any  negotiations  with  Ashford 
about  the  property  ;  and  that  he  was  induced  to  make  this  deed  by  the 
assurance  of  Kelly  that  the  grantee  would  assume  the  incumbrances 
upon  the  land  and  relieve  him  from  liability  upon  the  notes  he  had 
given  secured  by  mortgage. 

Ashford  testified  that  he  never  had  any  negotiations  with  any  one 
about  the  purchase  of  the  land  ;  and  that  in  February,  1S77,  Kelly,  who 
was  his  father-in-law,  to  whom  he  had  lent  much  money  and  for  whom 
he  had  indorsed  several  notes,  told  him  that,  in  order  to  secure  him 
from  loss,  he  had  procured  a  conveyance  to  be  made  to  him  of  these  four 
lots,  in  which  he  thought  "there  was  considerable  equity;"  informed 
him  at  the  same  time  that  there  were  incumbrances  or  mortgages  upon 
the  property,  but  did  not  specifically  mention  any  of  them,  except  the 
$1500  mortgage  upon  Lot  5  ;  told  him  that  the  interest  on  this  was 
pressing,  and  that,  if  he  would  pay  it,  Kelly  would  relieve  him  from 
any  further  trouble  as  to  the  incumbrances  ;  and  advised  him  to  go  on 
and  collect  the  rents  of  the  property,  so  as  toindemnifj^  himself  against 
that  interest  and  pay  the  taxes  in  arrears. 

It  was  proved  that  .^shford  in  INIarch,  1877,  entered  into  possession 
of  the  four  lots,  and  paid  the  taxes  previouslj-  assessed  upon  them,  and 
also  paid  interest  accruing  under  the  mortgage  for  $1500  on  lot  5,  and 
collected  the  rents  of  the  four  lots,  until  December  4,  1877,  when  he 
sold  and  conveyed  lots  7  and  8  to  one  Duncan,  subject  to  existing 
incumbrances  thereon;  and  continued  to  collect  the  rents  of  the  other 
two  lots,  and  to  pay  the  interest  accruing  under  the  mortgage  for  $1500 
on  lot  5,  until  March  14,  1878,  when  this  lot  was  sold,  pursuant  to  the 
provision  of  that  mortgage,  by  public  auction  and  conveyed  to  Hark, 
ness  for  the  sum  of  $1700,  which  was  insufficient  to  satisfy  the  amount 
then  due  on  that  mortgage. 

On  comparing  Ashford 's  testimony  with  that  of  Boarman,  the  plain- 
tiff's attorney,  with  a  letter  written  by  Ashford  to  Boarman  on  October 
3,  1S77,  it  clearly  appears  that  Ashford  was  informed  of  the  clause  in 
the  deed  to  him,  assuming  payment  of  incumbrances,  and  was  requested 
to  pay  the  plaintiff's  mortgage,  as  early  as  September,  1877,  and  then, 
as  well  as  constantly  afterwards,  declined  to  pa}'  it,  or  to  recognize  any 


320  IN   WHOSE   NAME    THE   ACTION   SHOULD   BE    BROUGHT. 

personal  liability  to  do  so.  There  was  no  direct  evidence  that  he  knew 
of  this  clause  before  September,  1877. 

The  plaintiff  brought  an  action  at  law  upoiT  the  note  against  Thomp- 
son as  maker  and  Kelly  as  endorser  on  November  13,  1877,  and  recov- 
ered judgment  against  both  in  December,  1877,  on  which  execution 
issued  and  was  returned  unsatisfied,  April  15,  1878. 

The  present  bill  was  filed  May  13,  1878.  A  decree  dismissing  the 
bill  was  rendered  in  special  term,  INIaj^  9,  1882,  which,  after  the  death 
of  Ashford  and  the  substitution  of  his  executrix  in  his  stead,  was 
afiirmed  in  general  term,  February  16,  1885,  upon  the  grounds  that 
Ashford  had  never  accepted  the  deed  to  him,  and  also  that  the  plain- 
tiff's remedy,  if  any,  was  at  law.  3  Macke}',  455.  On  the  same  day,  as 
the  record  states,  "  from  this  decree  the  plaintiff  appeals  in  open  court 
to  the  Supreme  Court  of  the  United  States,  which  appeal  is  allowed." 
The  appeal  bond  was  approved  February  18  and  the  appeal  was  entered 
in  this  court  April  10,  1885. 

The  case  was  argued  upon  a  motion  to  dismiss  the  appeal  for  want  of 
sufficient  amount  in  controversy  to  give  this  court  jurisdiction,  as  well 
as  upon  the  merits. 

Mr.  Walter  D.  Davidge  (with  whom  was  Mr.  Williaui  W.  Boarinan 
on  the  brief),  for  appellant. 

Mr.  George  F.  Appleby  and  Mr.  Calderon  Carlisle,  for  appellee.^ 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported,  delivered 
the  opinion  of  the  court. 

The  motion  to  dismiss  for  want  of  jurisdiction  must  be  denied.      .      .' 

But  upon  the  merits  of  the  case  we  are  unable  to  concur  with  the 
views  expressed  by  the  court  below,  in  its  opinion  reported  in  3  Mackey, 
455,  either  as  to  the  effect  of  the  testimony,  or  as  to  the  rights  of  the 
parties.  The  material  facts,  as  they  appear  to  us  upon  full  examina- 
tion of  the  record,  have  been  already'  stated.  It  remains  to  consider 
the  law  applicable  to  those  facts. 

The  questions  to  be  decided  concern  the  extent,  the  obligation,  and 
the  enforcement  of  the  agreement  created  by  the  clause  in  the  deed  of 
conveyance  from  Thompson  to  Ashford  of  this  and  three  other  lots, 

"subject,  however,  to  certain  incumbrances  now  resting  thereon,  payment  of 
which  is  assumed  by  said  party  of  second  part.  " 

The  five  mortgages  made  by  the  grantor,  namely,  the  plaintiff's 
mortgage  for  $2,000,  and  a  prior  mortgage  for  $1,500  on  lot  5,  and  a 
mortgage  of  $2,000  on  each  of  the  three  other  lots,  and  some  unpaid 
taxes  which  had  been  assessed  against  the  grantor,  were  incumbrances, 
and  were  the  only  incumbrances  existing  upon  the  granted  premises,  at 
the  time  of  the  execution  of  this  conveyance.     Rawle  on  Covenants 

1  The  arguments  are  omitted. 

2  The  t-easons  of  the  court  on  this  question  of  jurisdiction  are  omitted. 


KELLER   V.    ASHFORD.  321 

(5th  ed.)§  77.  The  clause  in  question,  by  the  words  "certain  incum- 
brances now  resting-  thereon,"  designates  and  comprehends  all  those 
mortgages  and  taxes,  as  clearly  as  if  the  words  used  had  been  ' '  the 
incumbrances,  "  or  "  all  incumbrances, ' '  or  had  particularly  described 
each  mortgage  and  each  tax.  We  give  no  weight  to  Thompson's  testi- 
mony as  to  Kell3''s  previous  conversation  with  him  to  the  same  effect, 
because  that  conversation  is  not  shown  to  have  been  authorized  by  or 
communicated  to  Ashford,  and  can  not  aflfect  the  legal  construction  of 
the  deed  as  against  him. 

It  was  argued  that,  because  the  deed  contains  a  covenant  of  special 
warrant}^  against  all  persons  claiming  under  the  grantor,  the  words 
' '  certain  incumbrances  ' '  can  not  include  the  mortgages  made  by  the 
grantor,  but  must  be  limited  to  the  unpaid  taxes  which,  it  is  said,  would 
not  come  within  the  covenant  of  special  warranty.  But  the  answer  to 
this  argument  is  that  any  person  claiming  title  by  virtue  of  a  lien 
created  by  taxes  assessed  against  the  grantor  would  claim  under  the 
grantor,  equally  with  one  claiming  by  a  mortgage  from  him  ;  and 
incumbrances  expressly  assumed  by  the  grantee  are  necessarily 
excli;ded  from  the  covenants  of  the  grantor. 

Ashford  is  not  shown  to  have  had  any  knowledge  of  the  convej'ance 
at  the  time  of  its  execution ;  and  a  suggestion  was  made  in  argument, 
based  upon  some  vague  expressions  in  his  testimony,  that  the  convey- 
ance was  intended  to  be  made  to  him,  bj-  way  of  mortgage  only,  to 
secure  him  against  loss  on  his  previous  loans  to  and  endorsements  for 
Kelly.  But  his  subsequent  acts  are  quite  inconsistent  with  the  theory 
that  the  conveyance  did  not  vest  the  legal  estate  in  him  absolutely. 

Within  a  month  or  two  after  the  conveyance,  having  been  told  that 
the  four  lots  had  been  conveyed  to  him  and  were  subject  to  incum- 
brances, (although  perhaps  not  then  informed  of  the  amount  of  the 
incumbrances),  he  entered  into  possession  of  the  lots,  and  thence- 
forth collected  the  rents ;  and  within  nine  months  after  the  convey- 
ance he  had  notice  of  the  clause  assuming  pa3-ment  of  incumbrances, 
and  was  requested  to  pay  the  plaintiff's  mortgage,  and  declined  to  pa}- 
it  or  to  recognize  any  personal  liability  for  it ;  5^et  he  afterwards 
sold  and  conveyed  away  two  of  the  lots,  and  continued  to  keep  posses- 
sion and  to  collect  rents  of  the  other  two.  Having  thus  accepted  the 
benefit  of  the  conversance,  he  can  not  repudiate  the  burden  imposed 
upon  him  bj^  the  express  agreement  therein,  and  would  clearlj-  have 
been  liable  to  his  grantor  for  any  breach  of  that  agreement.^ 

The  case  therefore  stands  just  as  if  Ashford  had  himself  received 
a  deed  by  which  he  in  terms  agreed  to  paj^  a  mortgage  made 
b}-  the  grantor.  In  such  a  case,  according  to  the  general,  not  to 
say  uniform,  current  of  American  authority,  as  shown  by  the  cases 
collected  in  the  briefs  of  counsel,  the  mortgagee  is  entitled  in   some 

1  Citing,  Blyer  v.  Monholland,  2  Sandf.  Ch.  478  :  Coolidge  v.  Smith,  129  Mass.  554  ;  Locke 
V.  Homer,  131  Mass.  93  ;  Muhlig  v.  Fiske,  131  Mass    no. 


322  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

form  to  enforce  the  agreement  against  the  grantee ;  and  much  of  the 
argument  at  the  bar  was  devoted  to  the  question  whether  his  remedy 
should  be  at  law  or  in  equity. 

Upon  the  question  whether  the  mortgagee  could  sue  at  law  there  is  no 
occasion  to  examine  the  conflicting  decisions  in  the  courts  of  the  sev- 
eral States,  because  it  is  clearly  settled  in  this  court  that  he  could  not. 

This  case  can  not  be  distinguished  from  that  of  National  Bank  v. 
Grand  Lodge,  98  U.  S.  123,  and  clearly  falls  within  the  general  rule 
upon  which  the  judgment  in  that  case  was  founded. 

It  was  there  held  that  a  contract  by  which  the  Grand  Lodge,  for  a  con- 
sidei-ation  moving  from  another  corporation,  agreed  with  it  to  assume 
the  pa3'ment  of  its  bonds,  would  not  support  an  action  against  the 
Grand  Lodge  by  a  holder  of  such  bonds  ;  and  IVIr.  Justice  Strong,  deliv- 
ering judgment,  after  observdng  that  the  contract  was  made  between 
and  for  the  benefit  of  the  two  corporations,  that  the  holders  of  the 
bonds  were  not  parties  to  it,  and  that  there  was  no  privit}'  between  them 
and  the  Grand  Lodge,  said  :  ' '  We  do  not  propose  to  enter  at  large  upon  a 
consideration  of  the  inquiry  how  far  privitj^  of  contract  between  a  plaintiff 
and  a  defendant  is  necessary  to  the  maintenance  of  an  action  oi  assump- 
sit. The  subject  has  been  much  debated,  and  the  decisions  are  not  all 
reconcilable.  No  doubt,  the  general  rule  is,  that  such  a  privity  must 
exist.  But  there  are  confessedly  many  exceptions  to  it.  One  of  them, 
and  by  far  the  most  frequent  one,  is  the  case  where,  under  a  contract 
between  two  persons,  assets  have  come  to  the  promisor's  hands  or 
under  his  control,  which  in  equity  belong  to  a  third  person.  In  such 
a  case  it  is  held  that  the  third  person  ma}'  sue  in  his  own  name.  But 
then  the  suit  is  founded  rather  on  the  implied  undertaking  the  law 
raised  from  the  possession  of  the  assets,  than  on  the  express  promise. 
Another  exception  is  where  the  plaintiff  is  the  beneficiary  solely  inter- 
ested in  the  promise,  as  where  one  person  contracts  with  another  to  pay 
money  or  deliver  some  valuable  thing  to  a  third.  But  where  a  debt 
already  exists  from  one  person  to  another,  a  promise  by  a  third  person 
to  pay  such  debt  being  primarily  for  the  benefit  of  the  original  debtor, 
and  to  relieve  him  from  liabilit}^  to  pay  it,  (there  being  no  novation),  he 
has  a  right  of  action  against  the  promisor  for  his  own  indemnity  ;  and 
if  the  original  creditor  can  also  sue,  the  promisor  would  be  liable  to  two 
separate  actions,  and  therefore  ihe  rule  is  that  the  original  creditor  can 
not  sue.  His  case  is  not  an  exception  from  the  general  rule  that  privity 
of  contract  is  required.  "     98  U.  S.  124.     See  also  Cragin  v.  Lovell.  109 

U.  S.  194. 

In  the  earlier  case  of  Hendrick  v.  Lindsay,  93  U.  S.  143,  cited  by  the 
defendant,  a  request,  accompanied  by  a  promise  of  indemnity,  to  one 
person,  to  sign  an  appeal  bond,  was  construed  to  include  another  per- 
son who  signed  it  as  surety,  and  therefore  to  support  a  joint  action 
by  the  principal  and  the  svirety,  both  of  whom  had  signed  the  bond 


KELLER   V.    ASHFORD.  323 

relying  upon  the  promise,  so  that  the  only  consideration  of  the  promise 
moved  from  them. 

In  the  case  at  bar,  the  promise  of  Ashford  was  to  Thompson  and  not 
to  the  mortgagees,  and  there  was  no  privity  of  contract  between  them 
and  Ashford.  The  consideration  of  the  promise  moved  from  Thompson 
alone.  The  only  object  of  the  promise  was  to  benefit  him,  and  not  to 
benefit  the  mortgagees  or  other  incumbrancers  ;  and  they  did  not  know 
of  or  assent  to  the  promise  at  the  time  it  was  made,  nor  afterwards  do 
or  omit  an}^  act  on  the  faith  of  it.  It  is  clear,  therefore,  that  Thompson 
only  could  maintain  an  action  at  law  upon  that  promise. 

In  equit}',  as  at  law,  the  contract  of  the  purchaser  to  pay  the  mort- 
gage, being  made  with  the  mortgagor  and  for  his  benefit  only,  creates 
no  direct  obligation  of  the  purchaser  to  the  mortgagee.  ^ 

But  it  has  been  held  by  many  state  courts  of  high  authority,  in 
accordance  with  the  suggestion  of  Lord  Hardwicke  in  Parsons  v.  Free- 
man, Ambler,  ii6,  that  in  a  court  of  equity  the  mortgagee  may  avail 
himself  of  the  right  of  the  mortgagor  against  the  purchaser. 

This  result  has  been  attained  by  a  development  and  application  of 
the  ancient  and  familiar  doctrine  in  equity  that  a  creditor  shall  have  the 
benefit  of  any  obligation  or  security  given  by  the  principal  to  the 
surety  for  the  payment  of  the  debt.^ 

In  Hampton  v.  Phipps,  just  cited,  this  court  declared  the  doctrine  to 
be  well  settled,  and  applicable  "equally  between  sureties,  so  that 
securities  placed  by  the  principal  in  the  hands  of  one,  to  operate  as  an 
indemnit3'  by  payment  of  the  debt,  shall  enure  to  the  benefit  of  all ;  " 
and  declined  to  apply  the  doctrine  to  the  case  before  it,  because  the 
mortgage  in  question  was  given  by  one  surety  to  another  merely  to 
indemnify  him  against  being  compelled  to  pay  a  greater  share  of  the 
debt  than  the  sureties  had  agreed  between  themselves  that  he  should 
bear,  and  he  had  not  been  compelled  to  pay  a  greater  share. 

The  doctrine  of  the  right  of  a  creditor  to  the  benefit  of  all  securities 
given  by  the  principal  to  the  surety  for  the  payment  of  the  debt  does 
not  rest  upon  any  liability  of  the  principal  to  the  creditor,  or  upon  any 
peculiar  relation  of  the  surety  towards  the  creditor;  but  upon  the  ground 
that  the  surety,  being  the  creditor's  debtor,  and  in  fact  occupying  the 
relation  of  surety  to  another  person,  has  received  from  that  person  an 
obligation  or  security  for  the  payment  of  the  debt,  which  a  court  of 
equity  will  therefore  compel  to  be  applied  to  that  purpose  at  the  suit  of 
the  creditor.  Where  the  person  ultimately  held  liable  is  himself  a 
debtor  to  the  creditor,  the  relief  awarded  has  no  reference  to  that  fact, 

1  Citing,  Parsons  v.  Freeman,  2  P.  Wms.  664,  note;  S.  C.  Ambler,  115;  Oxford  v.  Rodney, 
14  Ves.  417,  424;  In  re  Empress  Engineering  Co.,  16  Ch.  D.  125;  Gandy  v.  Gandy,  30  Ch.  D 
57.  67. 

2  Citing,  Maure  v.  Harrison,  i  Eq.  Cas.  Ab.  93,  pi.  5;  Bac.  Ab.  Surety,  D.  4;  Wright  v.  Mor- 
ley,  II  Ves.  12,  22;  Phillips  v.  Thompson,  2  Johns.  Ch.  418;  Curtis  v.  Tyler,  9  Paige,  432,  435; 
New  Bedford  Institution  for  Savings  v.  Fairhaven  Bank,  9  Allen,  175;  Hampton  v.  Phipps, 
108  U.  S.  260,  263. 


324  IN  WHOSE  XAxME  THE  ACTION  SHOULD  BE  BROUGHT. 

but  is  grounded  wholly  on  the  right  of  the  creditor  to  avail  himself  of 
the  right  of  the  surety  against  the  principal.  If  the  person,  who  is 
admitted  to  be  the  creditor's  debtor  stands  at  the  time  of  receiving  the 
security,  in  the  relation  of  surety  to  the  person  from  whom  he  receives  it, 
it  is  quite  immaterial  whether  that  person  is  or  ever  has  been  a  debtor  of 
the  principal  creditor,  or  whether  the  relation  of  suretyship  or  the 
indemnity  to  the  suretj'  existed,  or  was  known  to  tlie  creditor,  when  the 
debt  was  contracted.  In  short,  if  one  person  agrees  with  another  to  be 
primarily  liable  for  a  debt  due  from  that  other  to  a  third  person,  so  that 
as  between  the  parties  to  the  agreement  the  first  is  the  principal  and 
the  second  the  surety,  the  creditor  of  such  surety  is  entitled,  in  equity, 
to  be  substituted  in  his  place  for  the  purpose  of  compelling  such  prin- 
cipal to  pay  the  debt. 

It  is  in  accordance  with  the  doctrine,  thus  understood,  that  the  Court 
of  Chancery  of  New  York,  the  Court  of  Chancery  and  the  Court  of 
Errors  of  New  Jersey,  and  the  Supreme  Court  of  Michigan  have  held  a 
mortgagee  to  be  entitled  to  avail  himself  of  an  agreement  in  a  deed  of 
conveyance  from  the  mortgagor  by  which  the  grantee  promises  to  pay 
the  mortgage.^ 

The  grounds  and  the  limits  of  the  doctrine,  as  applied  to  such  a  case, 
have  been  well  stated  by  Mr.  Justice  Depue,  delivering  the  unanimous 
judgment  of  the  Court  of  Errors  of  New  Jersey,  in  Crowell  v.  St.  Bar- 
7iabas  Hospital  [1S76],  as  follows: 

"  The  right  of  a  mortgagee  to  enforce  payment  of  the  mortgage  debt, 
either  in  whole  or  in  part,  against  the  grantee  of  the  mortgagor,  does 
not  rest  upon  any  contract  of  the  grantee  with  him,  or  with  the  mort- 
gagor for  his  benefit. " 

"The  purchaser  of  lands  subject  to  mortgage,  who  assumes  and 
agrees  to  pay  the  mortgage  debt,  becomes,  as  between  himself  and  his 
vendor,  the  principal  debtor,  and  the  liability  of  the  vendor,  as  between 
the  parties,  is  that  of  surety.  If  the  vendor  pays  the  mortgage  debt, 
he  may  sue  the  vendee  at  law  for  the  money  so  paid. 

' '  In  equity,  a  creditor  may  have  the  benefit  of  all  collateral  obliga- 
tions for  the  payment  of  the  debt,  which  a  person  standing  in  the  situ- 
ation of  a  surety  for  others  holds  for  his  indemnity.  It  is  in  the 
application  of  this  principle  that  decrees  for  deficiency  in  foreclosure 
suits  have  been  made  against  subsequent  purchasers,  who  have  assumed 
the  payment  of  the  mortgage  debt,  and  thereby  become  principal 
debtors  as  between  themselves  and  their  grantors. ' ' 

1  Citing,  Halsey  v.  Reed,  9  Paige,  446,  452;  King  v.  Whitely,  10  Paige,  465;  Blyer  v.  Mon- 
holland,  2  Sandf.  Ch.  478;  Klapworth  v.  Dressier,  2  Beaslej',  62;  Hoy  v.  Bramhall,  4  C.  E. 
Green,  74,  563;  Crowell  v.  '.'urrier,  12  C.  E.  Green,  152;  S.  C.  on  appeal,  nom.  Crowell  v.  St. 
Barnabas  Hospital,  12  C.  E.  Green,  650;  Arnaud  v.  Grigg,  2  Stew.  Eq.  482;  Youngs  v.  Trus- 
tees of  Public  Schools,  4  Stew.  Eq.  290;  Crawford  v.  Edwards,  33  Mich.  354,  360;  Miller  v. 
Thompson,  34  Mich.  10;  Higman  v.  Stewart,  38  Mich.  513,  523;  Hicks  v.  McGarry,  38  Mich. 
667;  Booth  ?■.  Connecticut  Ins.  Co.,  43  Mich.  299. 

Citing  also,  Pardee  v.  Treat,  82  N.  Y.  3S5,  387;  CofiBn  v.  Adams,  131  Mass.  133,  137;  Biddel 
*.  Brizzolara,  64  Cal.  354;  George  v.  Andrews,  60  Md.  26;  Osborne  v.  Cabell,  77  Va.  462. 


KELLER    r.    ASHFORD.  325 

"  But  the  right  of  the  mortgagee  to  this  remedy  does  not  result  from 
any  fixed  or  vested  right  in  him,  arising  either  from  the  acceptance  by 
the  subsequent  purchaser  of  the  conveyance  of  the  mortgaged  premises, 
or  from  the  obligation  of  the  grantee  to  pay  the  mortgage  debt  as 
between  himself  and  his  grantor.  Though  the  assumption  of  the 
mortgage  debt  b}-  the  subsequent  purchaser  is  absolute  and  unqualified 
in  the  deed  of  conveyance,  it  will  be  controlled  by  a  collateral  contract 
made  between  him  and  his  grantor,  which  is  not  embodied  in  the  deed. 
And  it  will  not  in  any  case  be  available  to  the  mortgagee,  unless  the 
grantor  was  himself  personally  liable  for  the  payment  of  the  mortgage 
debt. 

' '  Recovery  of  the  deficiency  after  sale  of  the  mortgaged  premises, 
against  a  subsequent  purchaser,  is  adjudged  in  a  court  of  equity  to  a 
mortgagee  not  in  virtue  of  anj'-  original  equity  residing  in  him.  He  is 
allowed,  by  a  mere  rule  of  procedure,  to  go  directly  as  a  creditor  against 
the  person  ultimately  liable,  in  order  to  avoid  circuity  of  action,  and 
save  the  mortgagor,  as  the  intermediate  party,  from  being  harassed 
for  the  payment  of  the  debt,  and  then  driven  to  seek  relief  over  against 
the  person  who  has  indemnified  him,  and  upon  whom  the  liability  will 
ultimately  fall.  The  equit}^  on  which  his  relief  depends  is  the  right  of 
the  mortgagor  against  his  vendee,  to  which  he  is  permitted  to  succeed 
by  substituting  himself  in  the  place  of  the  mortgagor."  12  C.  E. 
Green.  655,  656. 

The  decisions  of  this  court,  cited  for  the  defendant,  are  not  onl}-  quite 
consistent  with  this  conclusion,  but  strongh'  tend  to  define  the  true 
position  of  a  mortgagee,  who  has  in  no  v:ay  acted  on  the  faith  of,  or 
otherwise  made  himself  a  part}'  to,  the  agreement  of  the  mortgagor's 
grantee  to  pay  the  mortgage ;  holding,  on  the  one  hand,  that  such  a 
mortgagee  has  no  greater  right  than  the  mortgagor  has  against  the 
grantee,  and  therefore  can  not  object  to  the  striking  out  by  a  court  of 
equity,  or  to  the  release  by  the  mortgagor,  of  such  an  agreement  when 
inserted  in  the  deed  by  mistake ;  Elliott  v.  Sackett,  loS  U.  S.  132  ;  Drury 
V.  Hayden,  in  U.  S.  223  ;  and,  on  the  other  hand,  that  such  an  agree- 
ment does  not,  without  the  mortgagee's  assent,  put  the  grantee  and 
the  mortgagor  in  the  relation  of  principal  and  surety  towards  the  mort- 
gagee, so  that  the  latter,  by  giving  time  to  the  grantee,  will  discharge 
the  mortgagor.     Shepherd  v.  May,  115  U.  S.  505,  511. 

The  present  case  is  a  strong  one  for  the  application  of  the  general 
doctrine.  The  land  has  been  sold  under  a  prior  mortgage  for  a  sum 
insufficient  to  pay  that  mortgage,  leaving  nothing  to  be  applied  towards 
the  pa^'ment  of  the  mortgage  held  by  the  plaintiff";  and  the  plaintiff" 
has  exhausted  her  remed}' against  the  mortgagor  personally,  by  recover- 
ing judgment  against  him,  execution  upon  which  has  been  returned 
unsatisfied. 

Although  the  mortgagor  might  properlj'  have  been  made  a  party  to 
this  bill,  yet  as  no  objection  was  taken  on  that  ground  at  the  hearing, 


326  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

and  the  omission  to  make  him  a  party  can  not  prejudice  any  interest  of 
his,  or  any  right  of  either  party  to  this  suit,  it  affords  no  ground  for 
refusing  relief.* 

Decree  reversed,  and  case  remanded  ivith  directiotis  to  enter  a  decree  for 

the  plaintiff.- 

1  Citing,  Mechanics'  Bank  v.  Seton,  i  Pet.  299;  Whiting  v.  Bank  of  United  States,  13  Pet.  6; 
Miller  v.  Thompson,  34  Mich.  10. 

2  Compare  IVillardv.  I ^ood  (1S90),  135  U.  S.  309,  where  Gray,  J.,  delivering  the  opinion  of 
the  United  States  Supreme  Court,  remarks:  "This  action  is  brought  by  a  mortgagee  against 
the  executrix  of  the  grantee  named  therein,  and  who  has  accepted  a  deed  executed  by  the 
mortgagor  only,  expressed  to  be  'subject  to  the  mortgage,-  and  by  the  terms  of  which  the 
^x^x^W^ 'assumes  and  covenants  to  pay,  satisfy  and  discharge"0^^vaox\.z^Z&&<th^-   ■    ■   ■ 

"  The  decisions  of  the  courts  of  New  York,  though  proceeding  upon  various  and  not  always 
consistent  reasons,  clearly  show  that  by  the  laws  of  that  state  (in  which  the  land  is  situated, 
and  the  bond  and  mortgage,  as  well  as  the  subsequent  deed  from  the  mortgagor,  were  exe- 
cuted and  delivered),  the  mortgagee  is  entitled  to  maintain  a  suit  either  in  equity  or  at  law, 
against  the  grantee  of  the  mortgagor,  to  enforce  the  payment  of  the  mortgage  debt,  //alsey 
V  Reed,  9  Paige,  446;  King  v.  IVhitely,  10  Paige,  465;  Blyer  v.  Monholland,  2  Sandf.  Ch.  478; 
Trotter  v.  Hughes,  12  N.  Y.  74;  Burr  v.  Beers,  24  N.  Y.  178;  Campbell  v.  Smith,  71  N.  Y.  26; 
Pardee  v.  Treat,  82  N.  Y.  385;  Hand  v.  Kennedy,  83  N.  Y.  149;  Bo7fen  v.  Beck,  94  N.  Y.  86. 

"  Assuming  that  the  mortgagee  has  acquired  by  the  law  of  New  York  a  right  to  enforce 
such  an  agreement  against  a  grantte  of  the  mortgagor,  the  form  of  his  remedy,  whether  i: 
must  be  in  covenant  or  in  assumpsit,  at  law  or  in  equity,  is  governed  by  the  lex  fori,  the  law 
of  the  District  of  Columbia,  where  the  action  was  brought.  Dixon  v.  Ramsay,  3  Cranch,  319, 
324;  U.  S.  Bank  v.  Donnally,  8  Pet.  361;  Wilcox  v.  Hunt,  13  Pet.  378;  Leroy  v.  Beard,  8  How. 
451;  Pritchardv.  Norton,  106  U.  S.  124,  130,  133.   .    .    . 

"In  the  District  of  Columbia,  the  only  remedy  of  the  mortgagee  against  the  grantee  was, 
as  adjudged  upon  great  consideration  in  Keller  v.  Ashford,  by  bill  in  equity,  in  which  he 
might  avail  himself  of  the  right  of  the  mortgagor  against  his  grantee,  because  in  equity  a 
creditor  is  entitled  to  avail  himself  of  a  security  which  his  debtor  holds  from  a  third  person 
for  the  payment  of  the  debt.  In  the  Supreme  Court  of  the  District  of  Columbia,  as  in  the 
Circuit  Court  of  the  United  States,  the  jurisdiction  in  equity  is  distinct  from  the  jurisdiction 
at  law,  and  equitable  relief  can  not  be  granted  in  an  action  at  law. 

"  A  statement  of  facts  agreed  by  the  parties,  or  technically  speaking,  a  case  stated,  in  an 
action  at  law.  doubtless  waives  all  questions  of  pleading,  or  of  form  of  action,  which  might 
have  been  cured  by  amendment;  but  it  can  not  enable  a  court  of  law  to  assume  the  jurisdic- 
tion of  a  court  of  equity.     For  these  reasons,  this  action  can  not  be  maintained." 

See  further,  IVillard  v.  IVood  {1S96),  164  U.  S.  502.  519;  Green  v.  Turner  (1897),  80  Fed. 
Rep.  41,  42;  Green  v.  Turner  (1898),  85  Fed.  Rep.  837,  838. 

Accord  also,  IVoodcock  v.  Bostic  (1896),  118  N.  C.  822.  Compare  New  York  Security  Co.  v. 
Louisville  Co.  (1899),  97  Fed.  Rep.  226,  232. 


DURNHERR   V.    RAU.  327 

DURNHERR  v.  RAU. 

Court  ok  Appeals  of  New  York,  October,  1892. 

[135  iV.  F.  219.] 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court, 
which  aflSrmed  an  order  entered  upon  the  minutes,  setting  aside  a 
verdict  in  favor  of  plaintiff  and  granting  a  new  trial. 

This  was  an  action  to  recover  damages  for  an  alleged  breach  of 
covenant  in  a  deed  from  Emanuel  Durnherr,  plaintiff's  husband,  to 
defendant. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Theodore  Bacon,  for  appellant. 

William  E.  Edmonds,  for  respondent.' 

Andrews  J. — The  deed  from  Emanuel  Durnherr  to  the  defendant 
recited  that  it  was  given  in  payment  of  a  debt  owing  b}'  the  grantor  to 
the  grantee  of  $660,  ' '  and  the  further  considerations  expressed  herein. " 
The  grantee  covenanted  in  the  deed  to  pay  all  incumbrances  on  the 
premises  "by  mortgage  or  otherwise."  This  constitutes  the  ox(S.y 
"  further  consideration  "  on  his  part  expressed  therein.  The  deed  also 
declared  that  the  wife  of  the  grantor  (the  plaintiff)  reser\'ed  her  right 
of  dower  in  the  premises.  The  conve3-ance  contained  a  covenant  of 
general  w^arranty  by  the  grantor,  and  the  only  legal  operation  of  the 
clause  respecting  the  dower  of  the  wife  was  to  limit  the  scope  of  the 
warranty  by  excluding  therefrom  her  dower  right.  By  the  foreclosure 
of  the  mortgages  on  the  premises  existing  at  the  time  of  the  convers- 
ance, in  which  (as  is  assumed)  the  wife  joined,  the  title  has  passed  to 
purchasers  on  the  foreclosure,  and  the  inchoate  right  of  dower  in  the 
wife  has  been  extinguished.  This  action  is  brought  by  the  wife  on  the 
defendant's  covenant  in  the  deed,  and  she  seeks  to  recover  as  damages 
the  value  of  her  inchoate  right  of  dower,  which  was  cut  off  by  the 
foreclosure. 

The  courts  below  denied  relief,  and  we  concur  in  their  conclusion. 
The  covenant  was  with  the  husband  alone.  He  had  an  interest  in 
obtaining  indemnity  against  his  personal  liability  for  the  mortgage 
debts,  and  this,  presumably,  was  his  primarj^  purpose  in  exacting  from 
the  grantee  a  covenant  to  pay  the  mortgages.  The  cases  also  attribute 
to  the  parties  to  such  a  covenant  the  further  purpose  of  benefiting  the 
holder  of  the  securities,  and  the  natural  scope  of  the  covenant  is 
expended  so  as  to  give  them  a  right  of  action  at  law  on  the  covenant, 
in  case  of  breach,  as  though  expressly  named  as  covenantees.  Burr  v. 
Beers,  24  N.  Y.  178.  But  the  wife  was  not  a  party  to  the  mortgages, 
and  in  no  way  bound  to  pay  them.  She  had  an  interest  that  they 
should  be  paid  without  resort  to  the  land,  so  that  her  inchoate  right  of 

1  The  arguments  are  omitted. 


328  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT 

dower  might  be  freed  therefrom.  The  husband,  however,  owed  her  no 
duty  enforcible  in  law  or  equity  to  pay  the  mortgages  to  relieve  her 
dower.  The  most  that  can  be  claimed  is  that  the  mortgages  having^ 
(as  is  assumed)  been  executed  to  secure  his  debts,  and  he  having  pro- 
cured the  wife  to  join  in  them  and  pledge  her  right  for  their  payment 
he  owed  her  a  moral  duty  to  pay  the  mortgages,  and  thereby  restore 
her  to  her  original  situation.  But  according  to  our  decisions  no  legal 
or  equitable  obligation,  of  which  the  law  can  take  cognizance,  was 
created  in  favor  of  the  wife  against  the  husband  or  his  property  by 
these  circumstances,  the  was  not  in  the  position  of  a  surety  for  her 
husband.  Her  joinder  in  the  mortgages  was  a  voluntary  surrender  of 
her  right  for  the  benefit  of  the  husband,  and  bound  her  interest  to  the 
extent  necessary-  to  protect  the  securities.  I\Ianhattan  Co.  v.  Evertson,  6 
Pai.  467;  Hawley  v.  Bradford,  9  id.  200.  There  is  lacking  in  this  case  the 
essential  relation  of  debtor  and  creditor  between  the  grantor  and  a  third 
person  seeking  to  enforce  such  a  covenant,  or  such  a  relation  as  makes 
the  performance  of  the  covenant  at  the  instance  of  such  third  person  a 
satisfaction  of  some  legal  or  equitable  duty  owing  by  the  grantor  to 
such  person,  which  must  exist  according  to  the  cases  in  order  to  entitle 
a  stranger  to  the  covenant  to  enforce  it.  It  is  not  sufficient  that  the 
performance  of  the  covenant  may  benefit  a  third  person.  It  must  have 
been  entered  into  for  his  benefit,  or  at  least  such  benefit  must  be  the 
direct  result  of  performance  and  so  within  the  contemplation  of  the 
parties,  and  in  addition  the  grantor  must  have  a  legal  interest  that  the 
covenant  be  performed  in  favor  of  the  party  claiming  performance.  > 

'I  he  application  of  the  doctrine  of  Lawrence  v.  Fox,  20  N.  Y.  26S,  to 
this  case  would  extend  it  much  further  than  hitherto,  and  this  can  not 
be  permitted  in  view  of  the  repeated  declarations  of  the  court  that  it 
should  be  confined  it  its  original  limits. 

The  order  should  be  affirmed,  and  judgment  absolute  ordered  for  the 

defendant  with  costs. 

All  concur. 

Order  affirmed  and  judg7nent  accordingly. 

1  Citing.  Garnsey  v.  Rogers,  47  N.  Y.  233;  Vrooman  v.  Turner,  69  N.  Y.  280;  Lorillard  v. 
Clvde,  122  N.  Y.  498. 


WAGER   V.    LINK.  329 

WAGER  V.  LINK,  Impleaded  with  Sully  et  al. 

Court  ok  Appeals  of  New  York,  October  30,  1896. 

\\^oN.  Y.  549.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court 
affirming  a  judgment  for  a  deficiency  in  a  foreclosure. 

The  action  was  brought  to  foreclose  a  mortgage  made  b}^  Jennie  E. 
Sull}^  and  her  husband,  to  the  plaintiff,  February  10,  1869,  securing  the 
pa\mient  of  $5,750  in  fifteen  years  from  April  i,  1869,  according  to  the 
conditions  of  a  bond  of  the  same  date  made  by  the  mortgagor.  The 
mortgage  was  a  purchase-money  mortgage,  given  upon  conveyance  of 
the  mortgaged  premises  by  the  plaintiff  and  his  wife  to  Jennie  E.  SullJ^ 

On  June  16,  1873,  Jennie  E.  Sully  and  her  husband  conveyed  the 
mortgaged  premises  to  Giles  B.  Kellogg  by  a  quit-claim  deed,  which 
contained  no  covenants.  On  February  17,  1874,  Kellogg  executed  and 
delivered  to  the  plaintiff  his  bond  under  seal  in  the  penalty  of  $10,000, 
with  condition  for  payment  of 

"the  sum  of  $5,750  in  fifteen  years  from  April  i,  1869,  with  interest  payable 
semi-annually  from  October  1,  1872,  on  each  and  every  first  day  of  April  and 
October,  with  the  privilege  to  the  said  obligor  of  paying  not  less  than  $500  nor 
more  than  $1,000  on  any  first  day  of  October,  on  giving  three  months'  previous 
notice  of  his  intention  so  to  do  (this  bond  being  given  as  collateral  to  a  bond 
and  mortgage  for  $5,750,  executed  by  Jennie  E.  Sully  and  Edward  P.  Sully,  her 
husband,  to  said  obligee,  dated  February  10,  1869,  and  the  said  obligor  having 
become  the  owner  of  the  mortgaged  premises)  in  case  of  default  in  the  pay- 
ment of  said  interest  or  principal  the  said  obligee,  or  his  assigns,  shall  exhaust 
his  remedy  against  the  mortgaged  premises  before  enforcing  this  bond." 

By  warranty  deed,  dated  March  30,  1875,  Kellogg  and  his  wife  con- 
veyed the  mortgaged  premises  to  the  defendant  Thomas  B.  Link,  in 
consideration  of  $10,000, 

"  subject  to  the  payment  by  the  said  party  of  the  second  part  of  a  mortgage  on 
said  premises,  held  and  owned  by  M.  Francis  Wager  for  $5,750,  with  interest 
from  April  i,  1875,  payable  semi-annually,  which  said  mortgage  with  interest  as 
aforesaid  the  said  party  of  the  second  oart  hereby  assumes  and  agrees  to  pay  as 
a  part  of  the  purchase  money  of  said  premises,  and  the  amount  of  which 
mortgage  constitutes  a  part  of  said  sum  of  $10,000,  the  consideration  named  in 
this  deed. " 

As  part  of  the  relief  sought  by  the  plaintiff,  he  demanded  judgment 
against  the  defendant  Link  for  any  deficiency  that  might  remain  after 
application  of  the  proceeds  of  sale  to  the  pavment  of  the  amount  due 
on  the  mort_gage. 

Further  facts  are  stated  in  the  opinion. 


330  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

Charles  E.  Patterson,  for  appellant. 

E.  R.  Harder  Qx^d.  G.  R.  Donnan,  for  respondent.  ^ 

Andrews,  Ch.  J. — The  main  controversy  in  this  case  was  determined 
by  the  Second  Division  of  this  court  on  the  former  appeal  (134  N.  Y. 
1 22), 2  which  was  taken  from  a  judgment  adjudging  that  the  defendant 
Link  was  not  liable  for  any  deficiency  which  might  arise  on  the  sale 
under  the  judgment  of  foreclosure.  It  was  held  by  this  court  that  the 
principle  of  equity  that  the  creditor  is  entitled  to  the  benefit  of  a  col- 
lateral obligation  for  the  payment  of  the  debt,  received  by  one  himself 
liable  therefor,  from  a  person  who  had  undertaken  to  indemnify  the 
former  against  his  liability,  applies  to  the  situation,  and  that  Link, 
who  in  his  conveyance  from  Kellogg  covenanted  to  pay  the  mortgage, 
was  chargeable  with  an^^  deficiency  arising  on  the  foreclosure  sale.  The 
judgment  of  the  Supreme  Court  was,  therefore,  reversed  as  to  the  part 
appealed  from,  namely,  the  part  exonerating  Link  from  liability,  and  a 
new  trial  as  to  that  question  was  awarded. 

^leanwhile  the  original  judgment  directing  a  sale  of  the  premises 
(from  which  part  of  the  judgment  no  appeal  has  been  taken),  had  been 
executed,  and  the  premises  on  the  sale  were  bid  off  by  the  plaintiff  for 
a  sum  much  less  than  the  amount  unpaid  on  the  mortgage.  The  courts 
below  on  the  second  trial  follow^ed  the  law  as  declared  on  the  first 
appeal  to  this  court  and  rendered  judgment  against  the  defendant  Link 
for  the  deficiency  as  ascertained  by  the  sale  and  the  subsequent  pro- 
ceedings. 

It  is  insisted  by  the  learned  counsel  for  the  defendant  Link,  that  the 
decision  on  the  former  appeal  to  this  court  adjudging  that  his  covenant 
in  the  deed  from  Kellogg  inured  to  the  benefit  of  the  holder  of  the 
mortgage,  and  entitled  the  latter  to  enforce  it  to  the  extent  of  an}- 
deficiency  arising  on  the  foreclosure,  is  a  departure  from,  or  at  least  an 
extension  of  the  doctrine  of  equitable  subrogation  as  heretofore  under- 
stood and  applied.  We  are  unable  to  concur  in  this  contention.  We 
think  that  the  decision  of  this  court  on  the  former  appeal  is  in  precise 
conformity  with  the  principle  of  equitable  subrogation  applied  to  the 
situation  of  creditor,  and  a  person  who  has  obligated  himself  to  pa}^  the 
debt  by  covenant,  with  one  who  had  become  obligated  for  its  payment. 

By  the  deed  from  Kellogg,  Link  acquired  the  legal  title  to  the  land. 
He  assumed  the  payment  of  the  mortgage  as  a  part  of  the  consideration 
of  the  purchase.  Kellogg 's  title  was  derived  under  a  quit-claim  deed 
from  the  mortgagors,  containing  no  covenant  of  assumption,  and  so  far 
as  appears  he  never  entered  into  an}'  covenant  or  agreement  with  them 
to  assume  or  to  pa}'  the  mortgage.  If  there  was  nothing  more  it  would 
be  plain  under  the  decisions  in  this  state,  commencing  with  King  v. 
Whitely,^  that  the  plaintiff  would  not  be  entitled  to  enforce  Link's  cov- 

1  The  arguments  are  omitted. 

2  Hee  note  at  end  of  this  case. — Ed.  • 

3  10  raige465  (1843). 


WAGER  :'.  i.iNK.  3;J1 

enant  in  the  deed  from  Kellogg.  But  Kellogg  l)y  his  bond  of  Februaty 
17,  1874,  executed  directly  to  the  plaintiff,  the  consideration  of  which 
is  not  questioned,  did  connect  himself  with  the  original  obligation  and 
became  l)ound  to  pay  the  part  of  the  mortgage  debt  which  should 
remain  unsatisfied  after  the  remedy  against  the  land  should  be 
exhausted.  1  his  bond,  although  given  subsequently  to  his  acquiring 
the  title  to  the  land,  was  executed  and  delivered  before  his  conveyance 
to  Link,  and  it  does  not  admit  of  doubt  that  it  created  an  obligation  on 
the  part  of  Kellogg  which  could  have  been  enforced  in  the  present 
action,  if  the  plaintiff  had  made  Kellogg  a  party,  and  sought  relief 
against  him  on  the  bond.  When  Kellogg  took  the  covenant  from  Link 
he  had  an  interest  to  protect  himself  against  his  liability  on  the  bond. 
It  was,  it  is  true,  a  personal  covenant  between  Kellogg  and  Link.  But 
it  is  generally  true  in  cases  of  assumption  clauses  in  deeds,  that  the 
covenant  is  in  form  between  the  grantee  and  grantor  only  ;  but  where 
the  grantor  is  bound  for  the  mortgage  debt,  then  equity  treats  it  as  a 
covenant  of  indemnity  to  the  grantor  and  the  grantee  as  a  surety  for 
the  grantor  against  his  liability  for  the  debt,  of  which  relation  the 
creditor  may  avail  himself  under  the  general  principle  adverted  to. 
This  beneficent  principle  prevents  unnecessary  litigation  and  appro- 
priates the  security  to  reinforce  the  original  obligation  according  to 
manifest  justice  and  equity. 

It  is  urged  that  the  fact  that  Kellogg 's  liability  was  not  created  bY 
his  deed  from  the  mortgagors,  but  by  a  subsequent  and  independent 
transaction  between  him  and  the  plaintiff,  renders  the  doctrine  of 
Halscy  v.  Reed,  9  Pai.  446,  and  the  cases  following  it,  inapplicable. 
It  is  true  that  most  of  the  cases  in  which  the  principle  has  been  applied 
in  our  courts  have  been  cases  in  which  the  covenant  to  assume  and  pay 
the  mortgage  was  contained  in  the  deed  conveying  the  premises.  But 
the  principle  that  the  creditor  may  avail  himself  of  the  covenant  does 
not  rest  upon  the  fact  that  it  was  contained  in  or  was  cotemporaneous 
with  the  conveyance  of  the  land.  The  point  to  be  determined  in  each 
case  was,  whether  the  grantor  in  the  deed  had  incurred  a  personal  lia- 
bility to  pay  the  debt.  If  he  had,  it  was  wholly  immaterial  whether 
the  liability  was  created  b}'  a  covenant  in  his  deed,  or  by  an  independ- 
ent writing.  It  was  necessary  to  establish  his  liability  in  some  way, 
for,  if  he  was  under  no  liability,  the  covenant  of  his  grantee  did  not 
place  the  latter  in  the  position  of  surety  for  the  grantor,  and  the  grantor 
being  imder  no  liability  to  the  creditor  the  covenant  could  not  inure  to 
his  benefit.  The  deeds  in  those  cases  were  onU'  important  because  they 
contained  the  personal  covenant  necessary  to  create  the  liability.  But  a 
bond  or  other  creditor  who  has  no  securit}'  by  mortgage,  but  only  the 
personal  liability  of  the  obligor  or  principal  debtor,  may,  for  the  same 
reason  as  in  mortgage  cases,  avail  himself  of  an  indemnity  held  by  the 
obligor  or  original  debtor  from  a  third  person  against  his  liability.  So, 
also,  the  fact  that  Kellogg  assumed  no  liability  to  his  grantors  for  the 


332  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

mortgage  debt,  or  otherwise  by  any  agreement  with  them,  is  imnip.- 
terial.  He  incurred  a  liability  by  his  bond  to  the  plaintiff,  subsequently 
given,  and  when  he  conveyed  to  Link  he  imposed  upon  him  the  pri- 
mary duty  to  discharge  that  obligation  as  a  part  consideration  for  the 
convej-ance.  The  case  of  Turk  v.  Ridge,  41  N.  Y.  201,  is  not  applicable. 
There  the  bond  was  given  by  the  grantee  to  the  grantor,  and  the  case 
turned  on  the  construction  of  the  covenant,  and  it  was  held  that  it  was 
not  a  covenant  to  pay  the  note  of  the  grantor  held  by  the  plaintiff.  The 
covenant  of  Link  in  this  case  was  to  pay  the  mortgage,  and  no  question 
of  construction  arises. 

It  is  urged  that  the  bond  of  Kellogg  to  the  plaintiff  was  improperly 
allowed  to  be  proved,  because  the  giving  of  the  bond  was  not  alleged 
in  the  complaint.  The  complaint  alleged  that  on  the  conveyance  from 
the  mortgagors  to  Kellogg, 

"Kellogg  orally  agreed  with  the  said  Sullys  to  assume,  and  did  assume  the  pay- 
ment of  the  mortgage  .  .  .  and  thereby  aiid  otherwise  became  legally  and 
equitably  bound  to  the  grantors  and  to  the  mortgagee  to  pay  the  same. " 

We  think  this  allegation  was  suflBcient,  in  the  absence  of  any  applica- 
tion on  the  part  of  the  defendant  Link  to  make  it  more  definite,  to 
justify  proof  of  the  bond,  even  assuming  that  an}^  allegation  on  that 
subject  was  necessary  to  permit  such  proof. 

We  think  the  point  that  the  defendant  was  or  may  have  been  preju- 
diced by  the  omission  to  ser\'e  process  on  Baker  and  Schermerhorn, 
named  as  defendants  in  the  action,  is  unfounded.  The  judgment  recited 
that  all  the  defendants  shown  by  the  record  to  have  had  an  interest  in 
the  mortgaged  premises  were  served  with  process.  The  judgment  of 
sale  was  entered  upon  the  motion  of  Link's  attorneys,  the  attorne3's 
for  the  plaintiff  opposing.  Neither  Baker  nor  Schermerhorn  had  any 
interest  in  the  mortgaged  premises.  They  were  subsequent  grantees, 
but  their  deeds  were  not  on  record  and  they  subsequently  and  before 
the  commencement  of  the  action,  conveyed  to  other  parties.  In  fact  all 
the  necessary'  parties  were  joined  as  defendants  and  serv^ed  with  process, 
and  a  good  title  would  be  acquired  by  a  purchaser  under  the  judgment. 
The  joining  of  Baker  and  Schermerhorn  as  defendants  was  unnecessary, 
as  they  had  no  interest  in  the  premises.  The  formal  and  usual  allega- 
tions in  the  complaint  that  the  defendants  therein  have  or  claim  some 
interest  in  the  premises,  subject  to  the  mortgage,  is  followed  in  a 
subsequent  clause  by  a  statement  that  Link  had  conveyed  to  Baker  and 
Schermerhorn  and  they  to  another  person  who  had  conveyed  to  the 
defendant  Van  Allen,  thereby  fairly  defining  their  relation  to  the 
propertj'.  The  supposition  that  in  bidding  on  the  sale  bidders  were 
influenced  by  any  notion  that  Baker  and  Schermerhorn  had  interests 
which  had  not  been  cut  off  by  the  judgment,  has  no  support  in  the 
proof.  If  such  was  the  fact  the  remedy  by  the  defendant  was  to  apply 
to  the  court,  after  his  liabilit}-  had  been  adjudged,    to  open  the  sale. 


the;  marblk  savings  bank  :•.  mksarvkv  i;t  al.  333 

His  attornc}-  was  present  and  bid  at  the  sale,  and  the  judgment  of  sale, 
as  has  been  said,  was  entered  upon  his  motion. 

We  see  no  error  in  the  judgment,  and  it  should,  therefore,  be  affirmed. 

All  concur. 

Judgment  affirvicd. ' 


THE  MARBLE  SAVINGS  BANK  :■.  MESARVEY  ET  AL. 

Supreme  Court  of  Iowa,  February  10,  1S97. 

[loi  Iowa  285.] 

This  is  an  action  in  equity-  for  a  judgment  on  a  note,  and  for  the 
foreclosure  of  a  mortgage  securing  it  upon  certain  real  estate. 

The  note  was  executed  by  the  defendant,  W.  D.  IMesarvey,  to  the 
Lewis  Investment  Company  for  $2,500,  dated  September  15,  1888,  and 
due  five  years  thereafter.     The  mortgage  was  executed  by  said  Mesar- 

1  When  this  case  was  first  before  the  New  York  Court  of  Appeals,  in  1892,  Wager  v.  Link, 
134  N.  Y.  122,  Bradley,  J.,  delivering  the  opinion  that  I,iuk  was  chargeable  for  any  deficiency 
that  might  arise  from  the  foreclosure  and  sale,  remark  'd  as  follows  : 

"When  the  defendant  took  from  Kellogg  the  conveyance  of  the  property  and  assumed 
the  payment  of  the  mortgage  debt,  for  which  be  reserved  an  equivalent  portion  of  the  con- 
sideration, his  obligation  as  between  him  and  his  grantor  v.  as  primary'so  far  as  the  latter 
was  personally  liable  for  it.  This  as  it  was  may  be  regarded  as  indemnity  to  him  for  tiie 
obligation  he  had  voluntarily  assumed  in  respect  to  the  debt,  and  to  that  extent  as  between 
them  they  had  the  relation  of  principal  and  surety,  and  for  the  purpose  of  relief  founded 
upon  the  doctrine  of  equitable  subrogation  they  may  be  so  treated  by  the  plaintiff.  {Halsey 
V.  Reed,  9  Paige,  446.)  And  withia  that  principle  ths  defendant  was  chargeable  with  the 
deficiency  and  for  such  purpose  was  properly  made  a  party  defendant  in  this  action. 

"  The  action  as  against  the  defendant  may,  we  think,  be  maintained  on  the  broader  ground 
that  his  promise  was  made  to  Kellogg  for  the  benefit  of  the  plaintiff,  and  had  the  requisite 
consideration  for  its  support.  There  was  no  qualification  of  the  liability  assumed  by  him, 
making  it  dependent  upon  any  condition.  His  grantor  placed  in  his  hands  a  fund  treated 
equal  to  the  amount  of  the  mortgage  debt,  and  upon  that  consideration  the  assumption 
appearing  by  the  terms  of  the  deed  was  ma  ie,  and  by  it  the  defendant  agreed  to  pay  the 
mortgage  'held  and  owned'  by  the  plaintiff.  This  appears  to  have  been,  and  it  was,  a 
promise  made  by  the  defendant  to  Kellogg  for  the  benefit  of  the  plaintiff.  It  was  made 
upon  a  consideration  by  which  he  was  equipped  with  a  fund  for  the  purpose,  and  its  per- 
formance would  discharge  his  grantor  from  a  personal  obligation  assumed  by  him  to  the 
plaintiff.  This  would  seem  to  bring  the  defendant's  undertaking  or  promise  thus  made 
within  the  principle  requisite  to  the  support  of  the  liability  of  the  defendant  to  the  plaintiff. 
(Lawrence  v.  Fox,  20  N.  Y.  26S;  Burr  v.  Beers,  24  id.  178;  Thorp  v.  Keokuk  Coal  Co.,  4S  id.  253; 
Schley  v.  Fryer,  100  id.  71.) 

"It  would  have  been  otherwise  if  the  title  to  the  land  had  not  passed  to  the  defendant. 
But  as  it  did,  the  obligation  of  the  grantor  in  respect  to  the  mortgage  debt  as  between  them 
b:.came  that  of  the  defendant,  his  grantee.     (Pardee  v.  Treat,  82  N.  Y.  3S5.) 

'•  The  suggestion  that  the  defendant  did  not  intend  that  his  covenant  should  inure  to  (he 
benefit  of  the  plaintiff,  because  when  made  he  was  not  advised  of  the  bond  of  Kellogg  to  the 
plaintiff,  may  be  met  by  the  fact  that  his  undertaking  was  to  pay  the  mortgage  of  which  the 
plaintiff  was  represented  as  the  holder  and  owner,  and  it  was  broad  enough  to  embrace  the 
e:iti:e  amount,  in  the  event  the  liability  of  his  grantor  had  been  such  as  to  make  the  cove- 
nant essentially  necessarj'  for  that  purpose. 

"  The  conclusion  is  that  the  defendant  was  chargeable  in  the  action  for  any  deficiency 
that  might  arise  from  the  foreclosure  and  sale." 


334  IN  WHOSK  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

vey  and  wife  upon  a  certain  tract  of  ground  in  the  city  of  Des  Moines, 
Iowa.  The  note  and  mortgage  were  transferred  to  the  plaintiff  by  the 
Lewis  Investment  Company.  On  May  2,  1893,  the  defendants  and 
appellants,  Neeb  and  Keefner,  purchased  the  real  estate  described  in 
the  mortgage,  and,  as  a  part  of  the  consideration  or  purchase  price  of 
said  property,  assumed  and  agreed  to  pay  said  mortgage;  said  obliga- 
tion being  embraced  in  the  deed  to  them  from  one  S.  S.  Smith  and 
wife,  and  being  in  these  words,  viz.: 

' '  Subject  to  a  mortgage  of  two  thousand  five  hundred  dollars,  given  to  the 
Lewis  Investment  Company,  which  the  grantee  herein  assumes  the  payment  of." 

Personal  judgment  was  asked  against  Neeb  and  Keefner,  also  a  decree 
of  foreclosure  of  the  mortgage.  The  defendants  filed  no  answer  and 
made  no  appearance.  On  the  trial  the  plaintiff  introduced  its  note  and 
mortgage  in  evidence,  also  the  warranty  deed,  from  Smith  and  wife  to 
these  defendants  and  appellants,  which  contained  the  clause  above 
mentioned.  A  personal  judgment  was  rendered  against  Neeb  and 
Keefner,  and  a  decree  of  foreclosure  was  entered  as  against  them  and 
other  defendants.  Thereafter  Neeb  and  Keefner  appealed  from  said 
judgment  and  decree. 

Berryhill  &  Henry,  for  appellants. 

Lewis  &  Royal,  for  appellee. 

KiNNE,  C.  J. — I.  There  is  a  contention  as  to  the  right  of  appellants 
to  have  the  question  raised  considered.  As  we  have  arrived  at  the 
conclusion  that  upon  the  merits,  the  case  should  be  affirmed,  we  do  not 
consider  the  point  made,  but  treat  the  question  as  properly  before  us 
for  determination. 

II.  If  the  evidence  showed  that  appellants'  grantor  had  purchased 
the  real  estate  upon  which  the  mortgage  rests,  which  is  foreclosed  in 
this  case,  from  the  mortgagor,  under  an  obligation  to  pa}^  the  mortgage 
debt,  or  if  it  appeared  that  all  intervening  purchasers  of  said  premises 
had  assumed  and  agreed  to  pay  the  mortgage  debt,  appellants,  we  take 
it,  would  not  question  the  right  of  appellee  to  recover  a  personal  judg- 
ment against  them  upon  their  agreement  to  pay  this  mortgage.  The 
controvers}^  arises  over  the  fact  that  it  is  not  shown  that  intervening 
purchasers  of  the  land  had  assumed  the  pa5-ment  of  the  debt,  nor  that 
appellant's  grantor  was  in  any  way  obligated  to  discharge  said  indebt- 
edness. No  case  decided  by  this  court  is  called  to  our  attention,  wherein 
the  facts  involved  were  like  those  in  the  case  at  bar. 

A  somewhat  extended  examination  of  the  decisions  in  other  juris- 
dictions, as  well  as  an  investigation  of  the  law  as  laid  down  by  leading 
authors,  reveals  the  fact  that  there  is  much  disagreement  as  to  the 
grounds  upon  which  one  who  is  not  primarily  liable  to  pa}^  the  mort- 
gagedebtbut  purchases  the  mortgaged  premises,  and  agrees  to  discharge 
said  debt,  is  held  liable.  In  some  cases  it  is  held  that  the  contract  to 
pay  the  mortgage,  operates  as  a  collateral  security,  obtained  by  the 


THI':   .MAKI'.I.Iv  SAVINGS   HANK   :'.    MI-SARVICY  ICT  AI,  :}:{."> 

mortgagor,  which  by  the  sul)r()gation  inures  to  the  benefit  of  the  mort- 
gagee. And  so  it  has  been  held  that  the  mortgagee  can  recover  a  per- 
sonal judgment  only  against  the  person  who  agreed  to  pay  the  debt, 
wlien  the  mortgagor  holds  an  obligation  which  will  support  the  judg- 
ment.' In  some  states,  and  we  think  in  most  of  thcni,  it  is  hell  that  the 
one  assuming  payment  of  the  debt  is  liable  upon  the  broad  principle 
that  a  j)romise  of  one  person  to  another  for  the  benefit  of  a  third  person 
may  be  enforced  by  the  latter."  This  is  the  recognized  doctrine  in  this 
state.  Gilbert  v.  Sanderson,  56  Iowa,  352  (9  N.  W.  Rep.  293);  Ross  v. 
.Kc7iiiison,  38  Iowa,  396,  and  cases  cited. 

It  is  held,  however,  in  some  of  the  states  adhering  to  the  rule  last 
stated,  that  there  can  be  no  recovery  in  such  a  case  unless  the  grantor 
is  personally  liable  upon  the  mortgage  which  his  grantee  assumed  to 
pay.  Hence  it  is  said  that  ' '  such  a  covenant,  made  b}'  one  to  whom 
the  premises  are  convej'ed,  after  several  conveyances  have  intervened 
since  the  conve3'ance  bj'  the  mortgagor,  can  not  be  enforced  by  the  holder 
of  the  mortgage,  unless  the  grantor  in  whose  deed  paj^ment  was  as- 
sumed, had  himself  assumed  the  payment  of  the  mortgage  debt,  or  made 
him-self  personally  liable  for  it  in  someway."^  This  is  the  rule  con- 
tended for  by  appellants  in  this  case.  It  is  therefore  simph-  a  question 
whether  the  obligation  assumed  by  one  who  purchases  the  mortgaged 
premises,  and  agrees  to  paj'  the  mortgage  debt,  shall  be  held  to  be  avail- 
able to  the  mortgagee  or  his  assignee  in  all  cases,  or  only  in  cases  where 
the  purchaser's  immediate  grantor  was  personally  liable  for  the  payment 
of  the  debt.  The  latter  is  the  rule  in  New  York  and  some  other  states. 
Upon  principle  we  discover  no  rea.son  for  limiting  the  application  of  the 
rule  to  recovery  in  cases  wherein  the  immediate  grantor  is  personally 
liable  to  the  mortgagee  or  his  assignee. 

The  theory  upon  which  personal  liability  to  a  third  person  not  a  party 
immediately  to  the  contract,  is  based,  is  that  one  may  lawfully  agree 
with  another  to  pay  a  third  person,  and  that  in  such  a  case  no  consider- 
ation need  pass  to  such  third  person,  nor  need  he  even  know  of  the 
arrangement.  The  consideration  for  this  land,  in  part  was  the  dis- 
charge, or  payment  of  this  mortgage,  by  the  purchasers.  As  between 
the  purchasers  and  their  grantor  there  can  be  no  question  that  such 
grantors  could  enforce  the  contract.  Now,  surely,  such  grantors  have 
the  right,  if  they  wish,  to  direct  the  application  of  the  purchase  money ; 
and  it  is  therefore  a  matter  of  no  concern  to  such  a  purchaser,  who  agrees 
to  pay  the  mortgage  debt,  as  to  whether  his  grantor  is  personally  liable 
to  pay  said  debt.     We  discover  no  reason  for  limiting  recovery  to  a  case 

1  Citing,  I  Jones,  Mortg;.,  section  761a. 

2  Citing,  I  Jones,  Mortg.,  section  758;  3  Pomeroy,  Eq.  Jur.,  .section  1207;  I  Beach,  Mod.  l,aw 
Cont.,  sections  196-200,  and  notes. 

■''  Citing,  I  Jones,  Mortg.,  section  760;  1  Beach,  Mod.  I,aw  Cont.,  sees.  200-202,  and  notes. 


336  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT, 

where  the  purchaser's  immediate  grantor  is  tinder  a  personal  obligation 
to  pay  the  mortgage  debt.     We  think  the  decree  was  correct. 

Affirmed.  ^ 

1  "Where  a  party,  purchaser  of  lauds,  agrees  as  a  part  of  the  contract  of  purchase  to  as- 
sume and  pay  a  mortgage  debt  existing  against  the  lands,  the  promise  so  to  do  is  for  the 
benefit  of  ihe  owner  and  holder  of  the  debt  and  may  be  enforced  by  such  party.  The  pur- 
chase price  of  the  lands  is  the  consideration  moving  between  the  purchaser  and  his  grantor, 
and  it  is  immaterial  and  of  no  consequence  to  the  grantee  that  his  grantor  may  or  may  not 
be  personally  liable  or  bound  for  the  payment  of  the  mortgage  debt,  and  by  such  promise 
the  promisor  becomes  personally  liable  to  the  mortgagee,  or  assigns,  for  the  mortgage  debt, 
regardless  of  whether  his  grantor  was  so  liable  or  not.  (Merriman  v.  Moore,  90  Pa.  St.,  78;, 
Dean  v.  Walker,  107  111.,  540;  Bay  v.  William.s,  i  N.  E.  Rep.  [111.],  340.)  "—Per  H.\rrison,  j., 
in  Harev.  Murphy,  (1895)  45  I^'eb.  809,  S13. 

Contra  (and  in  accord  with  Vrooman  v.  Turner,  ante):  Hicks  v.  Hamiltoti  (189S),  144  Mo. 
495  [P.  held  a  note  secured  by  a  deed  of  trust  upon  land  belonging  to  M.,  the  maker  of  the 
note.  M.  conveyed  the  land  subject  to  this  deed  of  trust  to  one  Cowling,  but  without  any 
assumptio.i  by  him  of  the  debt.  Cowling  subsequently  transferred  the  land  by  warranty 
deed  to  D.  This  A.&&AcoT\ts.\n^A^Q\z.-a%&s\.zX'^n%Va'sX  the  grantee  therein ''^  assiimes  and  agrees 
to  pay '^  the  debt.  After  this  conveyance  the  property  was  sold  under  the  deed  of  trust. 
The  proceeds  did  not  satisfy  P.'s  note.  He  sought  to  recover  the  deficiency  from  D.,  on  the 
ground  that  the  latter,  by  accepting  the  deed  from  Cowling,  had  assumed  and  agreed  to  paj- 
the  debt.]  Said  the  court  :  "The  agreement  between  the  promisor  and  the  promisee  must 
possess  the  necessary  elements  to  make  it  a  binding  obligation — in  other  words,  it  must  be  a 
valid  contract  between  the  parties  to  enable  a  third  person,  for  whose  benefit  the  promise  is 
made,  to  sue  upon  it.  A  mere  naked  promise  from  one  to  another  for  the  benefit  of  a  third 
will  not  sustain  an  action.  Cowling,  defendant's  grantor,  did  not  owe  the  mortgage  debt 
and  had  never  assumed  to  pay  it.  Defendant's  promise  was  not,  therefore,  to  indemnify 
him.  .  .  .  The  assumption  was  therefore  without  semblance  of  a  consideration  passing  from 
Cowling  to  the  defendant.  .  .  . 

"The  liability  of  a  grantee  of  real  estate,  who  had  assumed  the  payment  of  a  mortgage 
debt  upo-.i  it,  is  sometimes  placed  upon  the  doctrine  of  subrogation.  The  mortgagee  is  de- 
clared to  be  entitled  to  enforce  for  his  benefit  'all  collateral  obligations  for  the  payment  of 
the  debt,  which  a  person  standing  in  the  situation  of  a  surety  has  received  for  his  benefit.' 
As  between  the  parties  to  the  deed,  the  grantor  becomes  the  surety,  and  the  grantee  the 
principal  debtor.  Of  course  no  such  rule  could  obtain  where  the  grantor  was  not,  and  had 
never  become,  bound  for  the  debt. 

"If  plaintiff  is  to  rest  his  case  upon  the  proposition  that  he  can  recover  upon  the  promise 
of  defendant  to  Cowling  as  made  for  his  benefit,  he  is  met  by  the  objection  that  Cowling  was 
in  no  manner  indebted  to  o' connected  with  plaintiff,  and  bore  no  such  relation  to  him  as 
would  give  Cowling  any  interest  in  having  the  assumption  clause  inserted  in  the  deed." — 
Pfr  Williams,  J.,  p.  498,499.  And  Heim  v.  Vogel  (1S79),  69  Mo.  529,  is  distinguished  on  the 
ground  that  the  attention  of  the  court  in  that  case  was  not  directed  "to  the  difference  be- 
tween the  liability  of  a  grantee  of  mortgaged  premises  upon  a  clause  in  his  deed  assuming 
the  mortgage  debt  when  'his  grantor  V'ra.s  bound  therefor;  and  such  liabilitj^  when  there 
was  no  obligation  to  pay  upon  the  part  of  the  grantor." 

See  also,  Harberg  v.  Arnold  (1899),  78  Mo.  App.  237  :  [Action  to  charge  a  defendant  with 
the  payment  of  a  promissory  note  which,  it  was  claimed,  he  had  assumed  and  agreed  to 
paj'.]  Said  the  court  :  "  The  note  in  question  was  given  for  a  part  of  the  purchase  price  of 
certain  real  estate  and  was  secured  by  a  deed  of  trust  on  the  realty  conveyed.  The  prop- 
erty was  sold  from  [one]  to  another  until  finallj'  it  was  conveyed  to  one  T.  C.  Alexander. 
In  the  deed  to  Alexander,  there  was  no  clause  whereby  he  did  or  w^as  to  assume  the  note 
Alexander  then  sold  and  conveyed  to  the  defendant,  in  which  deed  it  was  recited  that  the 
defendant  assumed  and  agreed  to  pay  the  note  in  controversy.  Plaintiff's  intestate  is  the 
holder  of  the  note  by  successive  indorsements  from  the  original  holder,  and  he  relies,  to 
sustain  this  action,  on  the  ground  that  the  promise  made  by  defendant  to  Alexander  in  ac- 
cepting the  deed  aforesaid  inures  to  the  benefit  of  the  intestate. 

"  The  rule  as  now  seems  to  be  settled  in  this  slate  is  that  while  an  action  maj-  be  main- 
tained by  a  third  party  on  the  promise  of  one  to  another  for  the  benefit  of  such  third  party, 
yet  there  must  be  a  debt  or  duty  owing  by  the  promisee  to  the  third  party.  Insurance  Co.  v. 
Trenton,  42  Mo.  App.  118;  Howsmon  v.  Trenton,  119  Mo.  304  [given  in  text,  infra^;  St.  I,ouis 


Ji;i-I'ICKSON    V.    ASCH.  ?i,M 

JEFFERSON  v.  ASCH. 

vSupri:mi;  CorRT  ok  Minnesota,  June,  1893. 

[53  Minn.  446.] 

Appeal  by  plaintiffs,  Rufus  C.  Jefferson  and  James  Kasson,  from  an 
order  of  the  l  istrict  Court  of  Ramsey  County,  sustaining  a  demurrer 
to  their  complaint. 

The  case  is  sufficiently  .stated  by  the  court. 

Owen  Morris,  for  appellants. 

F.   W.  Zollman,  for  respondent.' 

GiLFiLLAN,  C.  J.— The  Boston  Northwest  Real-Estate  Company 
owned  a  lot  on  Sixth  Street,  St.  Paul,  with  two  buildings  standing  on 
it,  and  let  it  to  George  Benz  for  the  term  of  five  years  from  May  i, 
1889,  and  about  three  years  thereafter  he  sublet  it  for  the  remainder  of 
his  term  to  Smith  &  Co.  Afterw^ards  Smith  &  Co.  entered  into  a  con- 
tract with  the  defendant  Leithauser  to  make  certain  repairs  and  the 
defendants  Leithauser,  as  principal,  and  Asch  and  Boldthen,  as 
sureties,  executed  a  bond  in  which  they  acknowledge  themselves  to 
be  indebted  to  George  Benz,  "  for  the  use  of  the  Boston  Northwest  Real- 
E.state  Company,"  "and  all  persons  who  may  do  work  or  furnish 
material  ' '  pursuant  to  said  contract,  "  to  be  paid  to  said  George  Benz, 
his  executors,  administrators,  or  assigns  for  the  said  use,"  and  which 
was  conditioned  to  be  void  if  Leithauser  should  pay  "  all  just  claims 
for  all  work  done  and  to  be  done  and  all  materials  furnished  and  to  be 
furnished  pursuant  to  said  contract  and  in  the  execution  of  the  work 
therein  provided  for,  as  they  shall  become  due,  and  shall  indemnify  and 
save  harmless  said  George  Benz  and  said  Boston  Northwest  Real-Estate 
Company  from  all  mechanics' liens, "  etc.,  and  "indemnify  and  save 
harmless  the  said  George  Benz  from  all  claims  of  whatever  descrip- 
tion which  may  arise  from,  in,  or  about  said  work,  alterations,  and 
repairs." 

V.  Von   Phul,  133  Mo.  561;  Hicks  v.  Hamilton,  144  Mo.  495;  Devers  11.  Howard,    144  Mo.  671 
[given  in  text,  infra] ;  Street  v.  Goodale,  Barger  &  Co.,  77  Mo.  App.  318. 

"In  the  case  before  us  Alexander  is  the  promisee,  defendant  having  made  the  promise  to 
him.  But  Alexander  had  not  assumed  the  payment  of  the  note  in  the  deed  conveying  to 
him  the  property.  He  was  under  no  obligation,  legal  or  equitable,  to  pay  the  note  to  the 
holder,  this  plaintiff's  intestate.  So,  therefore,  under  the  rule  aforesaid,  the  plaintiff  can 
not  recover.  But  it  is  urged  upon  our  attention  that  defe.idant's  agreement  to  pay  the  note 
in  controversy  was  a  part  of  the  purchase  price  of  the  land  he  bought  of  Alexander,  and 
that  if  he  prevails  in  this  action  he  gets  the  land  without  paying  the  price.  This  was  no 
concern  of  plaintiff's  intestate.  The  promise  was  not  made  to  her,  and  she  can  not  come 
into  a  controversy  exclusively  between  others.  The  obligation  was  with  Alexander,  not 
with  her,  and  he  did  not  owe  her  anything.  It  was  necessar>%  as  we  have  seen,  in  order  to 
establish  such  a  privity  as  would  let  her  claim  the  promise  to  another  thatthat  other  should 
have  owed  her  something.  The  judgment  will  be  affirmed.  All  concur."— /!?>- Ellison, 
P-  239- 

1  The  reporter's  statement  and  the  arguments  are  omitted. 


338  IX  WHOSE  NAME  THE  ACTIOX  SHOULD  BE  BROUGHT. 

The  plaintiffs,  having  furnished  materials  to  the  contractor  for  the 
purposes  of  the  contract,  bring  this  action  on  the  bond  to  recover  the 
price  thereof. 

The  court  below  sustained  a  demurrer  to  the  complaint. 

From  the  seals  to  this  bond  there  arises  the  presumption  of  a  suffi- 
cient consideration  to  sustain  it  between  the  parties  to  it. 

The  cases  in  which  one  not  a  party  to  a  contract  may  sue  upon  a 
promise  in  it  for  his  benefit  were  at  one  time  limited  to  contracts  not 
under  seal,  and  this  court,  in  stating  the  law  on  the  subject,  in  Follans- 
bee  v.Jo/msofi,  28  Minn.  311  (9  N.  W.  Rep.  882),  expressed  that  limita- 
tion ;  but  the  distinction  in  this  respect  between  contracts  by  specialty- 
and  simple  contracts  has  not  in  the  later  authorities  been  adhered  to. 
and  may  now  be  regarded  as  abandoned.  If  there  ever  was  any  reason 
for  the  distinction,  it  could  only  have  been  a  technical  one,  which  no 
longer  has  any  merit  to  commend  it,  and  we  do  not  think  we  ought  to 
recognize  it. 

Though  this  seems  intended  as  a  mere  bond  to  indemnify  and  save 
harmless  the  obligee  named  in  it,  that,  and  not  any  incidental  benefit 
that  might  accrue  to  others  not  parties  to  it,  being  the  primary  purpose 
of  its  stipulations  and  promises,  we  will  treat  it,  because  on  both  sides 
it  is  so  presented  here,  as  though  such  primary  purpose  were  to  secure 
payment  to  the  persons  doing  work  or  furnishing  material  under  the 
contract  mentioned  in  it. 

In  considering  the  question  presented  we  must  lay  aside,  as  having 
no  bearing  upon  it,  the  cases  of  official  or  statutorj^  bonds  required  or 
authorized  for  the  benefit  or  security  of  persons  not  named  as  obligee, 
a  nominal  obligee  being  named,  and  where  the  statute  expressly  or  by 
implication  authorizes  such  persons  to  sue  upon  them.  Instances  ot 
such  are  sheriff''s  bonds,  probate  bonds,  bonds  authorized  b}-  the 
mechanics'  lien  law  in  1878,  G.  S.  ch.  90,  and  such  as  were  considered 
in  City  of  St.  Paul  v .  Butler,  30  Minn.  459  (16  N.  W.  Rep.  362),  and 
Morton  v.  Power,  33  Minn.  521  (24  X.  W.  Rep.  194). 

As,  so  far  as  appears  bj'  the  complaint,  Benz  could  not  be  liable  to 
pay  for  the  work  done  and  materials  furnished  in  fulfilling  the  contract 
to  repair,  and  as,  under  the  law  then  in  force,  his  interest  in  the  prop- 
erty could  not  be  subject  to  a  lien  therefor,  it  was  legally  a  matter  of 
indifference  to  him  whether  the  work  and  materials  were  paid  for  or  not. 
He  had  no  duty  in  respect  to  it.  And  the  question  comes  to  this : 
Where,  in  a  contract  between  two  persons  one  promises  the  other  to  do 
something  for  the  benefit  of  a  stranger  to  the  contract,  and  the  promisee 
has  no  relation  to  the  thing  to  be  done  nor  to  the  stranger  to  be  benefited, 
can  such  stranger  bring  an  action  to  enforce  the  promise  ? 

In  some  of  the  text-books  and  decisions  it  is  stated  generally  ' '  that, 
where  one  person  makes  a  promise  to  another  for  the  benefit  of  a  third 
person,  that  third  person  may  maintain  an  action  upon  it.  "  But  we  do 
not    think    there    is   a  case  to  be  found   in  which  such  an  action  was 


JEFFERSON  V.  ASCH.  3c59 

sustained  upon  the  bare  promise,  with  no  other  circumstances  to 
justify  an  exception  to  the  general  rule  that  an  action  upon  contract 
can  be  maintained  only  where  there  is  privity  of  contract  between  the 

parties. 

In  Lawrence  v.  Fox,  20  N.  Y.  268— the  most  conspicuous  and  most 
thoroughly  reasoned  case  in  New  York,  sustaining  an  action  by  a 
stranger  to  a  contract, — the  promisee  owed  the  debt  which  the  promisor 
agreed  to  pay,  and  loaned  him  the  money,  which  he  agreed  to  pay  to  the 
promisee 's  creditor.  Tliorp  v.  Keokuk  Coal  O?. ,  48  N .  Y .  253,  was  a  case 
where  the  grantee  in  a  conveyance  of  real  estate  assumed  to  pay  a  mort- 
gage resting  upon  it  to  secure  a  debt  of  the  grantor.  In  the  syllabus  to 
the  case  it  is  stated  that  it  overrules  Kijig  v.  Whitcly,  10  Paige,  465,  but, 
as  we  read  the  opinion,  it  goes  no  further  than  to  question  the  reason 
given  by  the  chancellor  in  the  latter  case  for  sustaining  an  action  in 
such  a  ca.se  when  it  can  be  sustained.  The  case  in  10  Paige  was  one 
where  the  grantee  in  a  conveyance  assumed  to  pay  a  mortgage  on  real 
estate  for  which  the  grantor  was  not  personally  liable.  It  was  held  that 
the  creditor  could  not  recover  of  the  grantee.  The  chancellor  stated  as 
the  principle  upon  which  a  creditor  can  recover  from  a  grantee  so  assum- 
ing to  pa}'  a  debt  of  the  grantor  that  a  creditor  is  entitled  to  be  subro- 
gated to  securities  for  the  debts  held  by  a  surety,  and  that  between  the 
grantor  and  the  grantee  in  such  case  the  latter  becomes  the  principal 
debtor  and  the  former  surety.  Another  and  simpler  reason  might  have 
been  given,  to-wit,  that  where  one  delivers  to  or  leaves  in  the  hands  of 
another  a  fund  with  which  to  satisfy  an  obligation  of  the  former,  a  duty 
in  the  nature  of  a  trust  is  thereby  created.  The  decision  in  10  Paige 
was  followed  in  Trotter  v.  Hughes,  12  N.  Y.  74,  and  approved  in  Garnsey 
r.  /Rogers,  47  N.  Y.  233. 

In  Vrooman  v.  Tmnier,  69  N.  Y.  2S0,  similar  in  its  facts  to  the  casein 
10  Paige,  the  court  go  over  the  whole  ground,  recognize  the  decision  in 
Lawrence  v.  Fox,  stipra,  and  hold  the  two  decisions  consistent,  and  fol- 
low that  in  10  Paige.  It  lays  down  this  rule  :  "To  give  a  third  party, 
who  may  derive  a  benefit  from  the  performance  of  the  promise  an 
action,  there  must  be — First,  an  intent  by  the  promisee  to  secure  some 
benefit  to  the  third  party  ;  and,  second,  some  privity  between  the  two, — 
the  promisee  and  the  party  to  be  benefited, — and  some  obligation  or  duty 
from  the  former  to  the  latter  which  would  give  him  a  legal  or  equitable 
claim  to  the  benefit  of  the  promise,  or  an  equivalent  from  him  person- 
ally. "  "  There  must  be  either  a  new  consideration,  or  some  prior  right 
or  claim  against  one  of  the  contracting  parties,  by  which  he  has  legal 
interest  in  the  performance  of  the  agreement;"  and  "there  must 
be  some  legal  right,  founded  upon  some  obligation  of  the  promisee, 
in  the  third  party,  to  adopt  and  claim  the  promise  as  made  for  his 
benefit . ' ' 

In  some  cases,  near  relationship,  as  of  father  and  daughter,  or  uncle 
and  nephew,  has  been  held  to  supply  the  place  of  a  strictlj'  legal  right 


340  IN  whose;  name;  the  actiox  should  be  brought. 

in  the  third  party.  Dtittoji  v.  Pool,  i  Vent.  318;  Feltoji  v.  Dickinso7t, 
10  Mass  287,  are  instances  of  such.  To  enforce  such  a  promise  in 
favor  of  a  third  part}-,  where  there  is  no  obligation  to  benefit  him  on 
the  part  of  the  promisor  or  promisee,  nor  anything-  such  as  near  rela- 
tionship, nor  any  consideration  from  the  third  party,  would  be  much 
like  enforcing  an  intended  gift  or  gratuity.  Vvoomaii  v.  Turiier  settled 
the  law  in  New  York,  as  the  decision,  subsequently  referred  to  with 
approval,  1  has  never  since  been  questioned. 

The  question  was  considered  and  the  cases  in  Massachusetts  summed 
up  in  an  able  and  exhaustive  opinion  by  INIetcalf,  J. ,  in  Mclleji  v. 
Whipple,  I  Gray,  317.  That  was  the  case  of  an  agreement  by  a  grantee 
of  real  estate  to  pay  a  mortgage  for  which  the  grantor  was  not  person- 
ally liable.  It  was  held  the  creditor  could  not  recover  from  the  grantee. 
The  court  attempts  to  classify'  the  cases  in  that  state  in  which  one  not 
a  part}'  to  the  promise  has  been  permitted  to  sue  upon  it.  The  classifi- 
cation may  be  briefl}'  stated  as — First,  cases  where  the  defendant  has  in 
his  hands  mone\'  which  in  equity  and  good  conscience  belongs  to  the 
plaintifi", — as,  if  A.  put  money  or  property  in  the  hands  of  B.  as  a  fund 
from  which  A.  's  creditors  are  to  be  paid,  and  B.  has  promised  expressly 
or  impliedly  to  pay  such  creditors;  seco?id,  cases  where  a  near  relation- 
ship, as  father  and  child  or  uncle  and  nephew,  exists  between  the 
promisee  and  the  person  to  be  benefited;  third,  the  cases  of  which 
Breiver  v.  Dyer,  7  Cush.  337,  is  an  instance,  in  which  the  defendant 
agreed  with  a  lessee  of  premises  to  take  the  lease  and  pa}'  the  rent  to 
the  lessor,  and  entered  with  the  knowledge  of  the  lessor,  paid  him  the 
rent  for  a  year,  and  then  left  before  the  term  expired. 

We  have  referred  so  fully  to  the  decisions  in  New  York  and  Mass- 
achusetts because  in  those  states  the  question  has  more  frequently 
arisen,  and  been  more  ably  and  thoroughly  discussed,  than  elsewhere 
in  this  country. 

There  has  been  no  decision  of  this  court  at  variance  with  the  rule  as 
held  in  those  two  states.  In  every  case  but  one  the  promise  was  to  pay 
a  debt  of  the  promisee,  and  a  fund  was  either  left  or  put  in  the  hands 
of  the  promisor  for  the  purpose.  That  one  case  was  decided  in 
a  line  with  the  rule  held  in  the  Vrooman  and  Mellen  cases.  A 
grantee  of  real  estate  had  assumed  a  mortgage  debt  for  which  the 
grantor  was  not  personally  liable.  It  was  held  the  creditor  could  not 
recover  from  the  grr_ntee.  Brown  v.  Stilhnan,  43  Minn.  126  (45  N. 
W.  Rep.  2). 

Without  undertaking  to  lay  down  a  general  rule  defining  when  a 
stranger  to  a  promise  between  others  may  sue  to  enforce  it,  we  are 
prepared  to  sa}*  that,  where  there  is  nothing  bvit  the  promise,  on  con- 

1  ReferrinK  to  Wilbur  v.  Warren,  104  N.  Y.  193,  (10  N.  E.  Rep.  263);  Litchfield  v.  Flint, 
104  N.  Y.  543,  (II  N.  E.  Rep.  58);  Comity  v.  Dazian,  114  N.  Y.  161,  (21  N.  E.  Rep.  135);  Loril- 
lard  V.  Clyde,  122  N.  Y.  498,  (25  N.  E.  Rep.  917):  Durnherr  v.  Rau,  135  N.  Y.  219,  (32  N.  E- 
Rep.  49)- 


JEFFERSON  V.  ASCH.  34 ^ 

sideration    from  such  stranger,  and  no  duty  or  obligation  to   him   on 
the  part  of  the  promisee,  he  can  not  sue  upon  it. 

Such  is  this  case. 

Order  affirmed. 

Vanderburgh,  J.,  took  no  part  in  the  decision.' 


HOWSMON  :•.   TRENTON  WATER  COIMPANY. 

Supreme  Court  of  Missouri,  December  23.   1893. 

[119  i\fo.  304.] 

Appeal  from  Orundy  Circuit  Court. 

Harder  &  Knight  and  A.   IV.  Mulltns,  for  appellant. 

i^.  L.  Yeager,  for  respondent. - 

Brace,  J. — This  is  an  appeal  from  the  judgment  of  the  circuit  court 
of  Grundy  county,  sustaining  a  demurrer  to  the  plaintiff's  petition,  the 
material  allegations  of  which  are  in  substance  as  follows: 

lln  Union  Ry.  Storage  Co.  v.  McDermott  (1893),  53  Minn.  407,  the  principle  oi  Jefferson  v. 
Asch  was  applied  to  the  following  facts: 

The  defendant  McDermott  entered  into  a  written  contract  with  the  United  States,  an 
assistant  quarter  master  of  the  army  making  the  contract  in  behalf  of  the  government, 
by  the  terms  of  which  McDermott  undertook  to  erect  certain  buildings  for  the  government 
at  Ft.  Snelling,  he  to  furnish  the  material  and  labor  therefor.  It  was  specifically  expressed 
by  article  three  of  the  contract  that  he  should  "be  responsible  for  and  pay  all  liabilities 
incurred  for  labor  and  material  in  fulfillment  of  this  contract."  In  article  six  it  was  agreed 
that  "all  rights  of  action  however,  for  any  breach  of  this  contract  by  the  said  John  R. 
McDermott  are  reserved  to  the  United  States." 

In  connection  with  the  making  of  this  contract  McDermott  as  principal,  and  other 
defendants  as  his  sureties,  executed  thrir  bond  to  the  United  States  in  the  penal  sum  of 
$5,000,  conditioned  that  McDermott  should  perform  all  the  covenants,  conditions,  and 
agreements  contained  in  the  contract,  to  which  the  bond  specifically  referred,  "including 
the  covenant  that  the  said  John  R.  McDermott  shall  be  responsible  for  and  pay  all  liabilities 
incurred  for  labor  and  material  in  fulfillment:  of  said  contract." 

The  plaintiff,  in  reliance  upon  the  terms  and  conditions  of  the  contract  and  bond, 
furnished  to  McDermott  at  an  agreed  price  a  large  quantity  of  brick,  which  was  used  in  the 
construction  of  the  buildinprs,  but  for  which  payment  was  never  made.  The  plaintiff  sought 
to  recover  in  an  action  on  the  bond.  A  demurrer  to  the  complaint  was  sustained  below  and 
the  plaintiff  appealed.  Said  the  Supreme  Court,  per  Dickinson,  J.:  "The  legal  question 
here  presented— as  to  the  right  of  the  plaintiff,  a  stranger  to  the  contract,  to  sue  upon  it- 
has  recently  been  considered  in  Jefferson  v.  Asch,  post,  p.  446,  (55  N.  W.  Rep.  604,)  and  the 
rule  here  declared  is  decisive  of  this  case.  The  plaintiff  has  no  right  of  action  on  the  bond. 
He  was  a  complete  stranger  to  it.  There  was  no  privity  between  him  and  the  promisee,— 
the  United  States.  The  latter  rested  under  no  duty  or  obligation  to  him  upon  which  he  could 
assert  any  legal  or  equitable  right  to  avail  himself  of  the  benefit  of,  and  enforce,  the  promise 
made  by  the  defendants  o  the  United  States.  Nor  was  the  promisee— the  United  States- 
interested  in  having  this  part  of  the  contract  performed.  It  would  be  no  benefit  to  the 
United  States  if  the  contractor  shiuld  pay  his  own  debts  for  material  purchased  by  him.  It 
would  be  in  no  way  prejudiced  if  he  should  not  pay.  Its  property  could  not  be  subjected  to 
a  lien  therefor.  In  brief,  the  right  of  the  plaintiff  to  sue  upon  this  bond  has  no  other  legal 
foundation  than  the  bare  fact  tliat  the  defendants  had  by  that  instrument  entered  into  an 
obligation  towards  a  mere  stranger  to  the  plaintiff  that  his  debt  shou'd  be  paid.  In  such  a 
case  the  stranger  to  the  contract  can  not  sue  upon  it.     Our  decision  above  cited  is  decisive." 

-  The  arguments  are  omitted. 


342  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

That  the  plaintiflFis  a  resident,  citizen,  and  taxpayer  of  the  town  of 
Trenton  in  said  county  and  the  owner  of  a  large  amount  of  valuable 
property  within  the  corporate  limits  of  said  town,  subject  to  taxation 
for  ordinary  purposes,  and  to  a  special  tax  of  five  mills  on  the  dollar 
annually  for  the  purpose  of  discharging  the  obligations  of  said  town  to 
the  defendant  on  the  contract  sued  on  herein,  all  of  which  he  has 
regularly  and  promptly  paid. 

That  by  a  contract  entered  into,  by  ordinances,  between  the  town  of 
Trenton  and  the  defendant,  the  said  defendant  (in  consideration  of  the 
franchise  granted  it,  and  the  privilege  of  collecting  certain  water  rates 
from  its  citizens,  and  of  the  sum  of  $2,000,  to  be  paid  annually  by  the 
town,  to  be  raised  b}-  an  annual  tax  of  five  mills  as  aforesaid,  all  of 
which  the  defendant  has  received  and  enjoyed)  promised  and  agreed 
with  said  town  to  furnish  at  all  times  an  adequate  supply  of  good, 
clear,  and  wholesome  water,  for  fire  and  other  purposes  for  public  and 
private  use,  under  such  a  pressure  as  to  have  the  power  to  throv*^  at  all 
times  six  streams  of  water  through  fifty  feet  of  two  and  one-half  inch 
rubber  hose  and  one  inch  ring  nozzle  eighty  feet  high  in  the  business 
portion  of  the  town,  and  to  throw  at  least  two  effective  streams  at  any 
one  time,  in  any  other  part  of  the  town  accessible  from  the  mains; 
and  further  agreed,  that 

"should  said  water  company  from  lack  of  water  supply,  or  any  other  cause 
except  providential  or  unavoidable  accident,  fail  to  furnish  a  reasonable  or  ade- 
quate supply  of  water  to  extinguish  any  fire,  then  it  shall  be  liable  for  all  dam- 
ages occasioned  by  such  fire  or  neglect. " 

That  on  the  twenty-fourth  of  March,  1889,  plaintiff"'s  dwelling  house 
in  said  town,  with  the  household  and  kitchen  furniture  and  wearing 
apparel  therein  contained,  all  of  the  value  of  $3,700,  was  destroj-ed  by 
fire,  that  said  house  was  close  to  the  main  of  defendant,  and  situated 
at  a  place  where,  in  the  event  a  fire  should  occur  there,  it  was  the  duty 
of  defendant  under  said  contract  to  furnish  an  adequate  supplj'  of 
water  with  force  and  power  sufficient  to  extinguish  such  fire;  which 
the  defendant,  without  any  providential  or  unavoidable  accident,  failed 
to  do,  and  by  reason  of  such  failure  plaintiff's  property  was  destroj^ed, 
to  his  damage  in  the  sum  of  $3,700. 

I.  It  is  well  established  law  in  this  state,  by  a  line  of  decisions 
extending  from  the  year  1847  to  the  present  date,  "  that  a  person  for 
whose  benefit  an  express  promise  is  made  in  a  valid  contract  between 
others  may  maintain  an  action  upon  it  in  his  own  name. "  ^  And  such 
is  now  the  prevailing  doctrine  in  America,  by  the  great  weight  of 
authority.     3  Am.  &  Eng.  Enc5'clopedia  of  Law,  p.  863,  note  5.     This 

1  Citing,  Ellis  v.  Harrisou,  104  Mo.  270 ;  State  ex  rel.  v.  Gas  Light  Co.,  102  Mo.  472; 
Fitzgerald  v.  Barker,  70  aio.  685  ;  Rogers  i'.  Gosnell,  58  Mo.  589;  Rogers  v.  Gosnell,  51  Mo. 
466 ;  Meyer  v.  Lowell,  44  Mo.  328 ;  Robbins  v.  Ayres,  10  Mo.  539 ;  Bank  v.  Benoist,  10 
Mo.  521. 


HOWSMON  V.  TRDNTON  WATKR  COMPANY.  343 

doctrine,  originally  an  exception  to  the  rule  that  no  claim  can  be 
sued  upon  contractually  unless  it  is  a  contract  between  the  parties  to 
the  suit,  has  become  so  general  and  so  far  reaching  in  its  consequences, 
as  to  have  ceased  to  be  simply  an  exception,  but  is  recognized,  within 
certain  limitations,  as  an  affirmative  rule. 

The  foregoing  cases  from  this  court,  are  in  harmony  with  the  rule  as 
laid  down  in  Lawrence  v.  Fox,  20  N.  Y.  268,  "that  an  action  lies  on  a 
promise  made  by  the  defendant,  upon  valid  consideration  to  a  third 
party,  .  .  .  although  the  plaintiff  was  not  privy  to  the  considera- 
tion and  that  such  promise  is  to  be  deemed  made  to  the  plaintiff  if 
adopted  by  him,  though  he  was  not  a  party  to,  or  cognizant  of,  it  when 
made."     Meyer  v.  Lowell,  44  Mo.  328. 

"  It  is  not  every  promise  [however]  made  by  one  to  another,  from 
the  performance  of  which  a  benefit  may  ensue  to  a  third,  which  gives  a 
right  of  action  to  such  third  person,  he  being  neither  privy  to  the  con- 
tract nor  to  the  consideration.  The  contract  must  be  made  for  his 
benefit,  as  its  object,  and  he  must  be  the  party  intended  to  be  bene- 
fited. ' ''  In  other  words,  the  rule  is  not  so  far  extended  as  to  give  a  third 
person,  who  is  only  indirectly  and  incidentally  benefited  by  the  contract, 
a  right  to  sue  upon  it.  "  But  "  the  name  of  the  person  to  be  benefited 
by  the  contract  need  not  be  given,  if  he  is  otherwise  sufficiently 
described  or  designated.  Indeed,  he  may  be  one  of  a  class  of  persons, 
if  the  class  is  sufficiently  described  or  designated."  Burton  v.  Lar- 
kin,  36  Kan.  246  ;  Johanyies  v.  Ins.  Co.,  66  Wis.  50. 

In  the  opinion  delivered  by  Allen,  J.,  in  Vt'ooma?i  v.  Turner,  (1877), 
69  N.  Y.  2S0,  it  was  said  :  "Judges  have  differed  as  to  the  principle 
upon  which  Lawrence  v.  Fox  and  kindred  cases  rest,  but  in  ever}'  case 
in  which  an  action  has  been  sustained  there  has  been  a  debt  or  duty 
owing  by  the  promisee  to  the  party  claiming  to  sue  upon  the  promise. 
Whether  the  decisions  rest  upon  the  doctrine  of  agency,  the  promisee 
being  regarded  as  the  agent  of  the  third  party,  who,  by  bringing  his 
action  adopts  his  acts,  or  upon  the  doctrine  of  a  trust,  the  promisor 
being  regarded  as  having  received  money  or  other  thing  for  the  third 
party,  is  not  material.  In  either  case  there  must  be  a  legal  right, 
founded  upon  some  obligation  of  the  promisee,  in  the  third  party,  to 
adopt  and  claim  the  promise  as  made  for  his  benefit. " 

An  examination  of  very  many  cases  decided  before  and  since  it  was 
so  held  in  that  case,  satisfies  us  that  the  rule  has  been  confined  to  such 
cases  in  this  state  as  well  as  elsewhere,  and  upon  that  principle,  when 
this  case  was  before  the. Kansas  City  court  of  appeals,  in  an  action  by 
another  party,  {Insurarice  Company  v.  Trenton  Water  Co.,  42  Mo.  App. 
118),  it  was,  in  effect,  held  that  the  plaintiff"  had  no  cause  of  action 
against  the  Water  Company,  because  the  town  of  Trenton  was  under 

1  Citing,  Simson  v.  Brown,  68  N.  Y.  355;  Vrooman  v.  Turner,  69  N.  Y.  2S0  ;  Wright  v. 
Terry,  23  Flor.  160  ;  Austin  v.  Seligman,  iS  Fed.  Rep.  519  ;  Burton  -u.  Larkin.  36  Kan.  246, 
and  cases  cited. 


344  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

no  obligation  to  the  plaintiff  to  furnish  an  adequate  supply  of  water 
and  power,  to  extinguish  the  fire  by  which  the  premises  were  con- 
sumed. And  in  support  of  its  position  the  following  additional  cases 
were  cited  :  Davis  v.  Water  Works  Co. ,  54  Iowa,  59 ;  Nickerson  v. 
Hydraulic  Co.,  46  Conn.  24  ;  Ferris  v.  Water  Co.,  16  Nev.  44  ;  Fowler 
V.   Water  Co.,  83  Ga.    219  ;  and  Atkinson  v.    Watef^works  Co.,   2   L.   R. 

Exch.  Div.  441. 

The  last  of  these  cases  is  not  in  point  since  the  action  in  that  case 
was  for  the  breach  of  a  public  statutory  duty  and  the  court  held  that 
the  action  would  not  lie,  because  the  statute  gave  no  right  of  action  to 
the  plaintiff.  The  cause  of  the  action  in  each  of  the  other  cases  was 
for  a  breach  of  duty  which  it  was  alleged  the  defendants  owed  the 
plaintiff"  under  a  contract  with  the  city,  to  which  the  plaintiff"  was  not 
a  party,  whereby  they  agreed  to  furnish  an  adequate  supply  of  water 
and  power  to  extinguish  fires  in  the  town  or  city.  To  this  it  was 
replied  in  the  Connecticut  case  (decided  in  1878):  "  Whatever  benefit 
the  plaintiffs  could  have  derived  from  the  water  would  have  come  from 
the  city  through  its  fire  department.  The  most  that  can  be  said  is, 
that  the  defendants  were  under  obligations  to  the  city  to  supply  the 
hydrants  with  water.  The  city  owed  a  public  duty  to  the  plaintiffs  to 
extinguish  their  fire.  The  hydrants  were  not  supplied  with  water,  and 
so  the  city  was  unable  to  perform  its  duty.  We  think  it  clear  that 
there  was  no  contract  relation  between  the  defendants  and  the  plain- 
tiffs, and  consequently  no  duty  which  can  be  the  basis  of  a  legal 
claim." 

In  the  Iowa  case  {Davis  v.  Water  Works  Company^,  decided  in  1880, 
it  was  replied  :  "  The  city,  in  exercise  of  its  lawful  authority,  to  pro- 
tect the  property  of  the  people,  may  cause  water  to  be  supplied  for 
extinguishing  fires  and  for  other  objects  demanded  by  the  wants  of  the 
people.  In  the  exercise  of  this  authority  it  contracts  with  defendant 
to  supply  the  water  demanded  for  these  purposes.  ...  It  can  not 
be  claimed  that  the  agents  or  officers  of  the  city  employed  by  the  muni- 
cipal government  to  supply  water,  improve  the  streets,  or  maintain 
good  order,  are  liable  to  a  citizen  for  loss  or  damage  sustained  by  rea- 
son of  the  failure  to  perform  their  duties  and  obligations  in  this  respect. 
They  are  employed  by  the  city  and  responsible  alone  to  the  city.  The 
people  must  trust  to  the  municipal  government  to  enforce  the  discharge 
of  duties  and  obligations  by  the  ofiScers,  and  agents  of  that  govern- 
ment." 

In  the  Nevada  case  {Ferris  v.  Water  Company'\,  decided  in  1881,  after 
citing  Vroonian  v.  Turner,  supra,  with  approval  and  quoting  there- 
from, it  was  replied  :  ' '  The  board  of  trustees  of  the  town,  in  the  exer- 
cise of  a  discretionary  power  conferred  upon  them  by  the  legislature, 
contracted  for  a  supply  of  water  for  the  extinguishment  of  fires.  The 
plaintiff",  in  common  with  the  other  residents  of  the  town,  enjoyed 
the  advantages  of  this  contract.     He  had  an  indirect  interest  in  the 


HOWSMON  V.  TRENTON  WATER  COMPANY.  345 

performance  of  the  contract  by  the  Water  Company,  as  had  all  of  the 
property  holders  of  the  town,  but  such  an  interest  is  not  sufiicient  to 
constitute  the  privity,  either  directly  or  by  substitution,  which  must 
exist  in  order  to  give  him  a  right  of  action  upon  the  contract. " 

In  the  Georgia  case,  decided  in  1889,  in  an  opinion  by  Bleckley,  C. 
J.,  it  was  replied  :  "  The  present  case  is  not  based  upon  the  breach  of 
a  statutory  duty,  but  solely  upon  failure  to  comply  with  a  contract 
made  with  the  municipal  government  of  Athens.  To  that  contract  the 
plaintiff  was  no  party,  and  the  action  must  fail  for  the  want  of  requis- 
ite privity  between  the  parties  before  the  court.  .  .  .  There  being 
no  ground  for  recovery,  treating  the  action  as  one  ex  contractu,  is  it 
better  founded  treating  it  as  one  ex  delicto  f  We  think  not.  The  vio- 
lation of  a  contract  entered  into  with  the  public,  the  breach  being  made 
by  mere  omission  or  non-feasance,  is  no  tort,  direct  or  indirect,  to  the 
private  property  of  an  individual,  though  he  be  a  member  of  the  com- 
munity and  a  tax  payer  to  the  government.  Unless  made  so  by  the 
statute,  a  city  is  not  liable  for  failing  to  protect  the  inhabitants  against 
the  destruction  of  property  by  fire.  Wright  v.  Aiigusta,  78  Ga.  241 ; 
7  Am.  and  Eng.  Encyclopedia  of  Law,  p.  997,  et  seq.'" 

The  case  in  hand  is  on  the  contract,  made  by  the  water  company  with 
the  town  of  Trenton,  and  the  only  feature  that  it  "presents  that  can  take 
it  out  of  the  principle  laid  down  in  these  cases  is  that  provision  was 
made  in  this  contract  for  a  special  tax  to  be  raised  to  provide  part  of 
the  consideration  the  water  company  was  to,  and  did,  receive,  to  which 
the  plaintiff  contributed,  and  an  express  promise  contained  in  the  con- 
tract that  ' '  should  said  water  company  from  lack  of  water  or  any  other 
cause,  except  providential  or  unavoidable  accident,  fail  to  furnish  a 
reasonable  or  adequate  supply  of  water  to  extinguish  any  fire,  then  it 
shall  be  liable  for  all  damages  occasioned  by  such  fire  or  neglect ; ' '  this 
argument  being  that  here  is  an  express  promise  of  indemnity  in  a  con- 
tract in  which  the  plaintiff  is  privy  to  the  consideration  at  least. 

The  argument  was  met  by  the  supreme  court  of  Iowa,  in  Becker  v. 
Waterworks,  79  Iowa,  419,  decided  in  1890,  probably  not  published 
when  this  question  was  before  the  Kansas  City  court  of  appeals,  in  the 
following  manner  :  First.  ' '  The  chief  question  raised  by  the  demurrer 
was  considered  in  Davis  v.  Waterworks  Co.,  54  Iowa,  59,  and  decided 
adversely  to  the  claim  now  made  by  plaintiff.  But  he  contends  that 
this  case  differs  from  that  in  several  material  particulars.  In  this  case 
a  special  fund  was  raised  by  the  city  to  pay  for  a  sufficient  supply  of 
water  for  use  in  case  of  fires,  and  to  that  fund  plaintiff  contributed.  It 
is  said  that  in  making  the  contract  and  in  levying  and  collecting  the 
taxes  required  by  its  provisions,  the  city  acted  as  a  mere  agent.  We  do 
not  think  the  fact  that  the  city  levies  and  collects  a  tax  to  be  paid  to 
defendant  creates  any  privity  of  interest  between  defendant  and  the  tax- 
payers. In  making  the  contract,  the  city  discharged  one  of  the  duties 
for  which  it  was  created  ;  and  in  raising  the  required  money  it  only 


346  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

provided  the  consideration  due  from  it  by  virtue  of  the  contract.  It 
will  hardly  be  claimed  that  defendant  could  proceed  against  a  taxpayer, 
in  the  first  instance,  for  any  unpaid  money  due  under  the  contract  from 
the  city.   ..." 

Second.  "It  was  decided  in  Va?i  Horn  v.  City  of  Des  Moines,  63  Iowa, 
448,  that  the  city  was  not  liable  for  the  failure  of  the  water  works  com- 
pany to  furnish  the  water  required  by  its  contract  to  extinguish  fires, 
even  though  the  cit}-  had  taken  a  contract  from  the  company  to  protect 
it  from  liability  which  might  arise  from  malfeasance  or  neglect  on  the 
part  of  the  company.  .  .  .  Much  stress  is  placed  by  appellant  upon 
that  part  of  section  18  which  provides  '  that  said  company  shall  be 
liable  for  all  injurj^  to  persons  or  property  caused  by  the  negligence, 
mismanagement  or  fault  of  itself  or  its  employees  while  engaged  in  the 
construction  or  operation  of  said  works. '  Municipal  corporations  have 
and  can  exercise  only  such  powers  as  are  expressly  granted  to  them  by 
law,  and  such  incidental  ones  as  are  necessary'  to  make  those  powers 
available,  and  are  essential  to  effectuate  the  purposes  of  the  corporation; 
and  those  powers  are  strictly  construed.  Clark  v.  City  of  Des  Moiiies, 
19  Iowa,  212;  McPherso7i  v.  Foster,  43  Iowa,  57.  The  law  which  author- 
izes cities  to  contract  with  individuals  and  companies  for  the  building 
and  operating  of  water  works  confers  no  power  upon  a  city  to  make  a 
contract  of  indemnity  for  the  individual  benefit  of  a  taxpayer,  for  a 
breach  of  which  he  could  maintain  an  action  in  his  own  name." 

The  town  of  Trenton,  under  its  charter,  had  power  to  pass  ordi- 
nances "to  prevent  and  extinguish  fires  "  (Laws  1856,  p.  353),  and  as 
incident  thereto  power  to  contract  for  a  suppl}^  of  water  for  that  purpose. 
But  it  would  seem  under  the  authorities  cited,  the  plaintiff"  can  not 
maintain  this  action  for  cogent  reasons,  which  have  and  may  be  put  in 
several  ways : 

First.  Although  it  was  within  the  power  of  the  town  by  contract  to 
supply  water  for  the  purpose  of  extinguishing  fires,  it  did  not  owe  the 
duty  of  extinguishing  fires  to  plaintiff.  Haller  v.  Sedalia.  53  Mo.  159. 
Consequently  the  case  is  not  brought  within  the  line  of  adjudicated 
cases  which  maintain  an  exception  to  the  rule  that  suit  upon  a  contract 
must  be  brought  by  a  party  to  the  contract,  in  cases  where  the  promisee 
owed  a  duty  to  the  third  party,  which  the  promisor  undertook  to  per- 
form. 

Second.  A  municipal  corporation  in  making  contracts  for  the  benefit 
of  its  citizens  acts  for  them  collectively,  and  for  all  of  them  in  every 
act,  and  the  relation  of  privity  is  not  and  can  not  be  introduced  into 
such  contracts,  by  reason  of  taxpaying,  or  the  discharge  of  anj'  civil 
duty  by  any  individual  citizen. 

Third.  The  benefits  to  be  conferred  upon  the  individual  citizen  by  the 
contract  are  incidental  to  the  contract,  the  primary  object  of  which  is 
the  benefit  of  all  the  citizens  in  their  corporate  capacity. 


HOWSMON-  r.  TRENTON  WATER  COMPANY.  347 

Fourth.  It  docs  not  clearly  appear  that  the  benefit  was  intended  for 
the  citi/.ens  in  their  individual  capacity,  but  may  have  been  intended 
for  the  protection  of  the  nuinicipality,  and  in  the  absence  of  express 
power  in  tlie  municipality  to  make  contracts  for  the  indemnity  of  its 
individual  citizens,  should  be  so  construed.  City,  ex  rel  v.  O'Connell, 
99  Mo.  357. 

Fifth.  The  relation  that  the  contractor  sustained  to  the  town  was  that 
of  its  agent  or  servant  to  carry  out  the  obligations  of  the  contract  upon 
its  part  for  the  benefit  of  all  the  citizens  of  the  municipality.  And  for 
the  enforcement  of  the  terms  thereof  the  citizens  must  look  to  the 
authorities  of  the  city,  and  can  not  individually  maintain  an  action  for 
a  breach  of  the  contract. 

Sixth.  The  town  had  no  authority  to  make  a  contract  to  indemnify 
the  plaintiff  for  the  loss  of  his  property  by  fire  resulting  from  the  neg- 
lect of  its  agents  or  servants  to  furnish  an  adequate  supply  of  water  to 
put  it  out,  and  therefore  could  not  make  such  a  contract  that  would  be 
binding  on  another. 

The  appellant  is,  however,  not  without  authority  to  sustain  his  posi- 
tion. In  a  recent  case  in  Kentucky,  decided  in  1889,  the  supreme  court 
of  that  state  held  that  "where  a  water  company  has  contracted  with  a 
city  to  furnish  at  all  times  a  supply  of  water  sufiicient  for  the  protec- 
tion of  the  inhabitants  and  property  of  the  citj*  against  fire  the  com- 
pany must  answer  in  damages  for  loss  by  fire  resulting  from  its  failure 
or  refusal  to  perform  its  contract."  Paducah  Lumber  Company  v. 
Paducah  Water  Supply  Company,  89  Ky.  340.  Authority  for  this  propo- 
sition is  not  therein  cited,  and  the  reasoning  upon  which  the  position  is 
rested  does  not  seem  to  us  entirel}^  satisfactory.  ^ 

lln  Paducah  Lumber  Co.  v.  Paducah  Water  Supply  Co.  (1S89),  89  Ky.  340,  the  court,  per 
IyEWIS,  C.  J.,  riiasoned  as  follows  : 

"Authorities  in  some  of  the  states  hold  the  general  rule  to  be  that  the  plaintiff  in  an 
action  on  contract  must  be  a  person  from  -whom  the  consideration  actually  moved,  and  that 
a  stranger  to  the  consideration  can  not  sue  on  a  contract.  But  we  think  if  there  be,  in  fact, 
consideration  for  a  promise  or  an  engagement  made  for  the  benefit  of  the  person  who  sues, 
it  is  not  essential  for  it  to  have  passed  directly  from  him  to  the  person  sued.  It  is  not,  how- 
ever, important  whether  this  case  either  comes  within  what  is  elsewhere  laid  down  as  a 
general  rule,  or  is  an  allowable  exception  to  it,  for  this  court  has  held  the  doctrine  well 
settled  that  a  party  for  whose  benefit  a  contract  is  'evidently  made  may  sue  thereon  in  his 
own  name,  though  the  engagement  be  not  directly  to  or  with  him.  Smith  v.  Lewis,  3  B.  M. 
229;  Allen  V.  Thomas,  3  Met.  198,  which  practice  is  not  only  in  accordance  with  the  rule  found 
in  Chitty  on  Pleading,  but  seems  to  be  required  by  section  18,  Civil  Code,  that  in  express 
terms  provides  every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  interest, 
except  that  under  section  21  a  fiduciarj'^  or  trustee  may  bring  an  action  without  joining  with 
him  the  person  for  whose  benefit  it  is  prosecuted, 

"  It  thus  follows  that  if  the  city  ot'  Paducah  had  power  to  make  the  contract  as  well  for 
the  personal  benefit  of  its  several  inhabitants  as  for  purely  municipal  purposes,  and  did  so 
make  it,  appellant  be'iigthe  real  party  in  interest,  becameowner  of  the  property  destroyed, 
has  the  right  to  prosecute  the  action  in  its  own  name,  if  maintainable  at  all,  and  the  city  of 
Paducah,  though  made  so,  is  not  even  a  necessary  party,  because  whatever  interest  it  may 
have,  or  injury  it  may  have  sustained,  is  entirely  distinct,  if  not  remote. 

' '  C  juceding,  as  must  be  done,  existence  of  the  alleged  power  of  the  city  of  Paducah  un- 
der its  cliarter  to  enter  into  a  contract  with  another  for  construction  and  operation  of  water- 
works, the  right  and  alsj  duty  attached  to  make  it  for  the  personal  benefit  of  inhabitants 


348  IX  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

The  plaintiif 's  contention  also  receives  some  support  from  the  reason- 
ing- of  Judge  Thompson  in  Lanipert  v.  Gas  Light  Company,  14  Mo. 
App.  376,  according  to  whose  views,  it  would  seem  that  the  contract 
declared  upon  here  should  raise,  on  the  part  of  the  defendant,  a  public 
duty  to  be  performed  for  the  benefit  of  the  inhabitants  of  the  town  dis- 
tributively,  and  for  the  negligent  nonperformance  of  that  duty  an 
action  would  lie  by  the  town  ' '  suing  upon  the  contract,  or  by  an  indi- 
vidual specially  damaged  thereby,  proceeding  as  for  the  nonperformance 
of  a  public  duty  and  setting  up  the  contract  by  way  of  inducement. " 

As  before  stated,  the  suit  here  is  upon  the  contract,  and  not  against 
the  water  company  for  the  negligent  nonperformance  of  a  public  duty, 
and  these  views  have  simply  persuasive  force.  At  all  events  the  posi- 
tion of  the  Kansas  City  court  of  appeals,  and  the  ruling  of  the  court 
below  in  this  case,  is  sustained  by  the  weight  of  authority,  and  the 
judgment  herein  will  be  affirmed.  All  concur,  except  Barclay,  J., 
absent. 


DEVERS  V.  HOWARD. 

Supreme  Court  of  Missouri,  June  14,  1898. 

[144  Mo.  671.] 

Transferred  from  Kansas  City  Court  of  Appeals. 
/.   W.  Periy,  for  appellant. 

Sallee  &  Goodman  and  D.  J.  Heasion,  for  respondents.^ 
Burgess,  J. — This  case  was  appealed  from  the  circuit  court  of  Har- 
rison county  to  the  Kansas  City  Court  of  Appeals,  where  the  judgment 

within  its  corporate  limits;  for  supply  of  water  in  a  city  for  domestic  and  manufacturing 
purposes,  and  as  safeguard  against  injury  to  or  destruction  of  private  property  by  fire,  is 
always  in  such  cases  the  main  inducement,  the  need  of  the  municipal  cor;)oration  itself  for 
water  supply  being  comparatively  little.  Besides,  it  is  manifest  the  principal  source  of  ex- 
pected profit  to  appellee  was  the  money  to  be  collected  by  imposition  of  the  special  tax- 
ation, and  for  private  use  of  water  with  which  to  pay  for  service  in  supplying  it  for  use  of 
the  inhabitants  and  protection  of  their  property  from  effects  of  fire.  And  it  being  alleged 
in  the  petition,  and  also  in  effect  provided  in  the  ordinance  of  the  city  council  that  contains 
the  terms  and  conditions  of  the  contract,  that  it  was  made  for  the  benefit  of  the  inhabitants, 
it  seems  to  us  that  if  the  appellee  can  be  made  answerable  in  damages  at  all,  it  is  liable  to 
appellant  upon  the  facts  stated  in  the  petition." 

See  further.  Sample  v.  Hale  (1.S92),  34  Neb.  220.  In  a  contract  between  one  Layne  and  the 
state  of  Nebraska,  for  the  erection  of  a  public  building,  Layne  agreed  "  to  pay  and  settle  in 
full,  with  the  parties  entitled  thereto,  all  accounts  and  claims  that  may  become  due  by  rea- 
son of  laborers'  and  mechanics'  wages  or  for  materials  furnished  or  services  rendered,  so 
that  each  and  all  persons  may  receive  his  or  their  just  dues  in  that  behalf."  Held,  that  the 
state  was  chargeable  with  a  moral  duty  to  protect  the  persons  who  furnished  labor  and 
materials  for  the  erection  of  the  building,  and  that  an  action  by  a  material  man  upon  the 
contract  between  Layne  and  the  state  could  therefore  be  maintained.  Knapp  v.  Szuaney 
(•885),  56  Mich.  345,  approved.  Accord  also  Fitzgerald  v.  McClay  (1896),  47  Neb.  816,  818; 
King  V.  Murphy  (1896),  49  Neb.  670;  Rohman  v.  Geiser  (1S98),  53  Neb.  474;  Pickle  Marble  Co. 
V.  MoClay  (1898),  54  Neb.  661.    Compare  Baker  v.  Bryan  (1884),  64  Iowa,  561,  565. — Ed. 

1  The  arguments  are  omitted. 


DEVERS   V.    HOWARD.  349 

was  affirmed,  but  thereafter  the  case  was  certified  to  this  court  by  the 
court  of  appeals,  upon  the  ground  that  one  of  the  judges  of  that  court 
was  of  the  opinion  that  the  decision  is  in  conflict  with  the  decision  of 
this  court  in  the  case  oi  St.  Louis  Public  Schools  v.   Woods,  77  Mo.   197. 

This  is  an  action  upon  a  bond  executed  by  the  defendant  Howard  as 
principal,  and  defendants  Vandivert  and  Thillips  as  his  securities,  to 
the  city  of  Bethany,  Mi.ssouri.  On  the  eighteenth  day  of  June,  1894, 
Howard  entered  into  a  contract  with  the  city  of  Bethany  to  dig  for  it  a 
well  on  lot  4,  block  7  of  Blackburn's  addition  to  said  city,  for  the  sum 
of  $Soo.  At  the  time  of  the  execution  of  the  contract  said  Howard  as 
principal,  and  Ashman  H.  Vandivert  and  George  L.  Phillips  as  securi- 
ties, executed  and  delivered  to  said  city  their  bond  in  the  penal  sum  of 
$1,000,  conditioned  for  the  faithful  performance  of  the  work  by  How- 
ard and  the  payment  by  him  for  all  labor  done  on  said  well,  and  for  all 
materials  furnished  for  or  used  on  the  same.  The  co7iditions  and  cove- 
nants of  the  bond  as  set  out  in  the  petition  are  that,  whereas  said  L. 
W.  Howard  had  on  that  day  entered  into  a  written  contract  wnth  said 
city  of  Bethany  by  which  he  had  agreed  to  dig,  wall,  and  complete 
said  well  for  said  city,  for  the  sum  of  $800,  the  said  L.  W.  Howard  to 
pay  for  all  labor  done  on  said  well,  and  for  all  material  used  or  furnished 
for  the  same,  the  said  well  to  be  dug  and  walled  up  and  finished  accord- 
ing to  certain  written  plans  and  specifications  which  were  made  a  part 
of  said  contract;  and  if  the  said  L.  W.  How^ard  should  dig  said  well 
according  to  his  said  contract  with  said  citj^  of  Bethany,  and  according 
to  the  plans  and  specifications,  and  should  pay  for  all  labor  done  on 
said  well,  and  also  pay  for  all  material  furnished  for  or  used  on  the 
same,  and  should  complete  said  contract  in  a  good  and  workmanlike 
manner  by  the  eighteenth  day  of  July,  1894,  then  said  obligation  to  be 
void,  otherwise  to  remain  in  full  force  and  effect. 

The  petition  then  proceeds  as  follows  : 

Plaintiff  further  states  that  said  condition  in  said  bond  for  the  payment  for 
all  labor  done  or  material  furnished  in  the  construction  of  said  well,  was 
inserted  therein  in  pursuance  to  the  provision  of  the  said  written  contract 
between  said  L.  W  Howard  and  said  city  of  Bethany  for  the  sole  and  express 
purpose  of  protecting  all  persons  who  should  do  work  upon  or  furnish  material 
for  the  construction  of  said  well,  and  because  it  was  well  known  to  all  of  the 
parties  to  said  bond  or  writing  obligatory  that  said  L.  W.  Howard  was  wholly 
and  totally  insolvent  as  hereinbefore  alleged. 

Plaintiff  further  states  that,  relying  upon  the  said  provisions  in  said  written 
contract  between  said  L.  W.  Howard  and  said  city,  and  upon  the  indemnity  and 
protection  provided  and  offered  thereby,  and  relying  solely  upon  the  said  condi- 
tions and  terms  of  said  bond  or  writing  obligatory  and  knowing  that  said  L.  W. 
Howard  was  insolvent,  he  did,  after  the  execution  of  said  contract  and  said 
bond  and  during  the  construction  of  said  well,  furnish  to  said  L.  W.  Howard 
the  following  material  of  the  value  stated,  and  which  was  by  him,  the  said  L. 
W.  Howard,  used  in  the  construction  of  said  well,  to-wit: 


350  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

i39>^  Perch  of  Stone,  at  $i  per  perch $i39-5o 

By  Cash 42-6o 

Balance  due $90.00; 

that  said  L.  W.  Howard  has  failed  and  neglected  to  pay  for  the  same,  although 
often  requested  so  to  do,  and  the  whole  amount  thereof  is  yet  due  and  unpaid. 

Plaintiff  further  states  that  after  the  completion  of  said  well,  to-wit,  about 
the  17th  day  of  August,  1894,  he  presented  his  bill  for  the  material  aforesaid  to 
.  the  proper  officers  of  said  city  of  Bethany,  and  demanded  and  requested  said 
city  to  protect  the  plaintiff  in  his  said  claim,  and  to  deduct  the  amount  thereof 
from  any  balance  that  might  be  due  to  said  L.  W.  Howard  for  constructing  said 
well;  that  thereupon  said  city  of  Bethany  was  about  to  exercise  the  right  con- 
ferred upon  it  by  said  contract  to  pay  said  claims  for  work  and  material  out  of 
the  balance  claimed  by  said  defendants  to  be  due  on  said  contract,  and  was 
about  to  pay  the  claim  of  plaintiff  and  others  who  had  furnished  material  for 
the  construction  of  said  well,  when  the  defendants  and  each  of  them  in  his  own 
proper  person  appeared  before  the  board  of  aldermen  of  the  said  city  of  Beth- 
any on  or  about  the  17th  of  August,  1S94,  and  then  and  there  admitted  and 
agreed  that  they  were  liable  under  said  condition  of  said  contract  and  bond  for 
said  bills  of  plaintiff  and  others  who  had  furnished  material  for  the  construction 
of  said  well,  and  that  if  said  city  of  Bethany  would  receive  and  accept  said 
well  from  them,  and  would  pay  to  the  defendants  the  sum  of  one  hundred  and 
ninety-six  dollars  and  seventy-five  cents,  the  balance  due  for  constructing  said 
well,  they,  the  said  defendants,  would  immediately  pay  to  this  plaintiff  and  the 
other  persons  who  had  furnished  material  for  the  construction  of  said  well,  the 
full  amounts  of  their  respective  claims;  and  that  the  agreement  of  said  city  of 
Bethany  to  accept  said  well  and  to  pay  said  balance  claimed  by  the  defendants 
to  be  due  for  the  construction  thereof  was  upon  the  express  condition  that  the 
defendants  would  pay  said  claim  of  plaintiff  and  others;  that  but  for  said 
agreement  on  the  part  of  the  defendants  L.  W.  Howard,  Ashman  H.  Vandivert, 
and  Geo.  L.  Phillips,  the  said  city  of  Bethany  would  have  then  and  there  paid 
the  claim  of  plaintiff  out  of  the  balance  due  said  L.  W.  Howard  from  said  city; 
that  plaintiff  being  fully  advised  of  said  arrangement  between  said  city  and  said 
defendants,  agreed  to  and  acquiesced  therein,  fully  relying  on  the  agreement  of 
the  defendants  to  pay  the  claim  of  plaintiff;  that  immediately  after  said  agree- 
ment between  said  city  and  the  defendants  hereinbefore  alleged  and  set  forth, 
and  upon  the  same  day,  the  defendant  ratified  and  reaffirmed  the  same  to  this 
plaintiff,  and  promised  the  plaintiff  that  they  would  pay  his  said  claim  on  the 
following  day. 

"  Plaintiff  further  states  that  immediately  upon  the  making  of  said  agreement, 
on  or  about  said  17th  day  of  August,  1894,  between  said  city  and  said  defend- 
ants, and  in  consummation  thereof,  said  city  did  accept  and  receive  said  well  and 
did  pay  to  the  defendants  Ashman  H.  Vandivert  and  Geo.  L.  Phillips,  at  the 
instance  of  the  defendant  L.  W.  Howard,  the  sum  of  $196.75,  but  the  said 
defendants  Ashman  H.  Vandivert  and  Geo.  L.  Phillips,  after  procuring  the 
acceptance  of  said  well  and  the  payment  of  said  sum  of  one  hundred  and 
ninety-six  dollars  and  seventy-five  cents,  as  aforesaid,  wholly  failed  and  refused 
to  keep  their  said  agreement  or  to  pay  to  this  plaintiff  the  balance  of  his  said 
claim  or  any  part  thereof. 

"  Wherefore  the  plaintiff  says  that  by  reason  of  the  facts  aforesaid  the  defend- 
ants have  become  liable  to  him  for  the  sum  of  ninety-six  dollars  and  sixty  cents. 


DUVEKS  V.   HOWARD.  851 

with  interest  thereon  from   the  said   17th  day  of  August,  1894,  for  which,  with 
costs,  the  plaintiff  asks  judgment." 

Defendants  demurred  to  the  petition  upon  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer  was 
sustained,  and  plaintiff  declining  to  plead  farther,  judgment  was  ren- 
dered in  favor  of  the  defendants. 

Defendants  take  the  position  that  the  plaintiff  is  not  entitled  to 
recover  on  the  bond  sued  on,  nor  on  the  contract"  referred  to  in  the 
petition,  because  not  privy  to  that  contract,  and  for  the  further  reason 
that  the  city  of  Bethany  has  no  authority  under  its  charter  to  make  con- 
tracts for  the  benefit  of  strangers  or  third  parties. 

There  are  authorities  which  sustain  defendants' position,  but  the  more 
recent  decisions  of  this  court  are  the  other  way,  and  to  the  effect  that  a 
contract  between  the  parties,  made  upon  a  valid  consideration,  may  be 
enforced  by  a  third  person,  though  not  named  in  the  contract,  where  the 
obligee  owes  to  him  some  duty  legal  or  equitable  which  would  give  him 
a  just  claim.  In  St.  Louis  to  use  v.  Von  PIuil,  133  Mo.  565,  the  court 
said  :  ' '  That  a  contract  between  two  parties  upon  a  valid  consideration 
may  be  enforced  by  a  third  part\',  when  entered  into  for  his  benefit,  is 
well  settled  in  this  state.  This  is  so  though  such  third  party  be  not 
named  in  the  contract  and  though  he  was  not  privy  to  the  consideration. 
Rogers  V.  Gosftell,  58  Mo.  590;  State  ex  rel.  v.  Gaslight  Co.,  102  Mo. 
482  ;  Ellis  V.  Harrison,  104  Mo.  276,  and  cases  cited.  It  is  sufficient 
in  order  to  create  the  necessary  privity  that  the  promisee  owe  to  the 
party  to  be  benefited  some  obligation  or  duty,  legal  or  equitable,  which 
would  give  him  a  just  claim." 

In  that  case,  ihQ  case  oi  Kansas  City,  Etc.,  Co.  v.  Thompson,  120  Mo. 
221,  relied  upon  by  defendants  as  announcing  a  reverse  doctrine,  was 
expressly  overruled,  and  the  case  of  Howsman  v.  Treiiton  Water  Co., 
119  Mo.  304,  and  cases  cited,  also  relied  upon  by  defendants,  distin- 
guished from  the  Vo?i  Phul  case  and  cases  of  like  character,  upon  the 
ground  that  cities  are  under  no  legal  or  moral  obligation  to  their  citizens 
to  extinguish  fires,  and  for  that  reason  there  is  no  such  privity  between 
them  as  promisees  and  citizens  as  would  give  the  citizen  a  right  of 
action  on  the  contract. 

Kansas  City  ex  rel.  v.  O'Connell,  99  Mo.  357,  is  not  an  authority  in 
support  of  defendant's  position.  That  was  an  action  for  damages  for 
personal  injuries  in  the  name  of  the  city  against  O'Connell  on  his  bond 
to  the  city  in  the  nature  of  a  contract  containing  among  other  things 
the  following  stipulations  : 

"It  is  further  distinctly  agreed  that  the  said  party  of  the  first  part  shall  be 
responsible  for  all  unlawful  damages  to  persons  or  property  from  negligence  or 
carelessness,  in  doing  said  work,  or  in  not  using  proper  precaution,  between 
commencing  and  completing  the  job,  by  barricades,  signals,  lights,  or  otherwise, 
to  prevent  injury  to  persons  or  property  from  said  work,  and  the  approaches 
thereto,  and  shall  indemnify  the  city  of   Kansas  against  all  losses  or  claim  for 


352  IN  WHOSE  NAME  THE  ACTION'  SHOULD  BE  BROUGHT. 

damages,  on  account  of  such  neglect,  or  carelessness  ;  and  the  said  party  of  the 
first  part  covenants  with  said  city  of  Kansas  to  pay  all  laborers  employed  on 
said  work Said  parties  of  the  second  part  hereby  guaran- 
tee that  said  party  of  the  first  part  will  well  and  truly  perform  the  covenants 
hereinbefore  contained,  to  pay  all  laborers  employed  on  said  work,  but  they 
shall  not  be  liable,  on  this  guarantee,  beyond  two  thousand  dollars,  the  esti- 
mated cost  of  the  labor  on  said  job  ;  and  said  parties  of  the  second  part  hereby 
agree  with  said  city  of  Kansas  that  said  party  of  the  first  part  will  well  and 
faithfully  perform  each  and  all  of  the  terms  and  stipulations  in  the  foregoing 
contract  to  be  done,  kept  and  performed  on  the  part  of  said  party,  and  said 
parties  of  the  second  part  shall  not  be  liable  hereon  beyond  the  sum  of  eight 
thousand  dollars." 

It  was  held  that  the  provisions  of  the  bond  were  those  of  indemnity 
in  favor  of  the  city,  and  created  no  liability  in  favor  of  third  persons. 
The  court  expressly  declined  to  express  an  opinion  with  respect  to  the 
power  of  the  city  to  enter  into  a  contract  for  the  benefit  of  third  parties. 
It  observed  :  "  Whether  the  city  would  require  the  contractor  to  give 
a  bond,  which  would  be  available  to  third  persons  in  case  of  injuries 
received  by  them,  on  account  of  the  negligence  of  the  contractor,  is  a 
question  which  need  not  be  considered." 

The  petition  in  this  case  alleges  in  effect  that  plaintiff,  after  the  exe- 
cution of  the  contract  between  Howard  and  the  city  of  Bethany  for  dig- 
ging said  well,  knownng  that  Howard  was  insolvent  and  relying  solely 
upon  the  terms  and  conditions  of  said  bond,  did  during  the  construc- 
tion of  said  well,  furnish  to  said  Howard  the  material  described  in  the 
petition,  which  was  used  in  the  construction  of  said  well,  and  for 
which  he  has  not  been  paid  ;  and  by  these  affirmative  allegations  he 
shows  a  breach  of  that  condition  of  said  bond  by  which  it  is  provided 
that  the  said  L.  W.Howard  "is  to  pay  for  all  material  used  or  fur- 
nished "  for  said  well. 

In  the  case  of  City  of  St.  LoJiis  to  use  z:  Voti  Phut,  supra,  it  is  fur- 
ther observed  :  ' '  The  following  cases  uphold  the  right  of  third  persons, 
such  as  subcontractors,  laborers,  and  material  men  to  maintain  an  action 
on  a  bond,  given  by  a  contractor  to  a  state,  county,  city,  or  school  dis- 
trict, conditioned  for  the  faithful  performance  of  a  contract  for  a  public 
improvement,  and  for  the  payment  of  all  claims  of  such  third  persons, 
though  no  express  power  was  given  to  the  obligee  to  require  such  con- 
ditions. "  Baker  v.  Bryan,  64  Iowa,  562  ;  Lyman  v.  City  of  Lincobi,  38 
Neb.  800;  Sample  v.  Hale,  34  Neb.  221;  Korsmeyer,  Etc.,  Co.  v. 
McCay,  43  Neb.  649  ;  Katiffmann  v.  Cooper,  65  N.  W.  Rep.  796.  The 
same  rule  is  announced  in  The  Board  of  President  and  Directors  of  the 
St.  Louis  Public  Schools  v.   Woods,  77  Mo.  197. 

The  city  of  Bethany  is  a  city  of  the  fourth  class,  and  under  its  char- 
ter has  the  power  to  provide  water  for  the  use  of  its  citizens  and  in  let- 
ting the  contract  to  Howard  for  that  purpose  it  had  the  right  under 
the  authorities  cited  to  require  of  him  a  bond  as  in  this  case,   condi- 


DEVERvS  V.  HOWARD.  853 

tioned  for  the  payment  of  laborers,  and  material  men,  upon  which  they 
might  sue  upon  breach  of  these  conditions. 

Our  conclusion  is  that  the  petition  states  a  cause  of  action  and  that 
the  demurrer  thereto  should  have  been  overruled. 

For  these  considerations  we  reverse  the  judgment  of  the  Court  of 
Appeals  and  remand  the  cause  to  that  court,  with  directions  to  reverse 
the  judgment  of  the  Circuit  Court  and  remand  the  cause  to  be  tried 
in  accordance  with  this  opinion.  Gantt,  P.  J.,  and  Sherwood,  J., 
concur.' 

lln  City  of  Si.  Louis  to  use,  etc.  v.  Von  Phul  (1896),  133  Mo.  561,  cited  in  the  text,  the  facts 
as  stated  by  the  court  were  as  follows  :  The  defendants  Von  Phul  and  Joseph  Grimm  secured 
a  contract  from  the  city  of  St.  I^ouis  to  repair  the  sidewalks  in  a  certain  district.  The  con- 
tract provided  in  detail  for  the  work,  the  materials  to  be  used,  and  for  the  payment  therefor 
by  special  tax  bills  to  be  charged  against  adjacent  property.  At  the  end  of,  and  as  a  part  of, 
the  contract  was  this  obligation,  signed  by  the  contractors  and  the  Municipal  Trust  Com- 
pany and  Edward  Butler  as  securities  : 

"  The  said  St.  I,ouis  Sidewalk  Company,  Stephen  Von  Phul  and  Joseph  V.  Grimm,  pro- 
prietors, as  principal,  and  Municipal  Trust  Company  and  Ed.  Butler  as  sureties,  hereby 
bind  themselves  and  their  respective  heirs,  executors,  and  administrators,  unto  the  said  city 
of  St.  I,ouis  in  the  penal  sum  of  ten  thousand  dollars,  lawful  money  of  the  United  States, 
conditioned  that  in  the  event  the  said  St.  I^ouis  Sidewalk  Company  shall  faithfully  and 
properly  perform  the  foregoing  contract  according  to  all  the  terms  thereof,  and  shall,  as 
soon  as  the  work  contemplated  by  said  contract  is  completed  pay  to  the  proper  parties  all 
amounts  .'.ue  for  material  and  labor  used  and  employed  in  the  performance  thereof,  then 
this  obligation  to  be  void,  otherwise  of  full  force  and  effect,  and  the  same  maybe  sued  on  at 
the  instance  of  any  material  man,  laboring  man,  or  mechanic,  in  the  name  of  the  city  of  St. 
I^ouis,  to  the  use  of  such  material  man,  laboring  man,  or  mechanic,  for  any  breach  of  the 
condition  hereof  ;  provided  that  no  such  suit  shall  be  instituted  after  the  expiration  of  ninety 
days  from  the  completion  of  the  above  contract." 

The  Glencoe  I^ime  and  Cement  Company  furnished  the  contractors  with  materials  for  use 
in  performing  their  contract.  The  suit  was  upon  the  contract,  wherein  plaintiff  claimed  a 
balance  due  on  account  of  materials  furn  shed  amounting  to  $9,i53-30-  The  action  was 
brought  under  the  title  of  "The  City  of  St.  Louis  to  use  of  Glencoe  Ume  and  Cement  Com- 
pany."   It  was  held  that  the  action  could  be  maintained,  lor  the  reasons  given  in  the  text. 

In  the  later  case  of  the  City  of  Bethany  v.  Howard  (1899),  I49  Mo.  504,  a  municipal  corpor- 
ation, the  City  of  Bethany,  sued  in  its  own  name  upon  the  bond  considered  in  Devers  v.  How- 
ard, 144  Mo.  671,  alleging  that  Howard  had  failed  to  pay  for  labor  performed  and  materials 
furnished,  in  digging  the  well,  by  Miner  &  Frees,  Cadle  I,umber  Co.,  W.  I,.  Devers  and  R. 
T.  Bedell. 

There  was  a  demurrer.  Said  the  Court  (per  Gantt,  P.  J.):  "Conceding  that  the  four 
firms  each  had  its  several  rights  of  action  upon  said  bond  for  the  amount  due  it,  the  ques- 
tion still  remains  as  to  the  right  of  said  city  of  Bethany  to  bring  this  action,  under  the 
circumstances  detailed  in  the  petition. 

"It  may  be  remarked  in  passing  that  it  appears  from  the  face  of  the  petition  that  this 
is  the  same  account  upon  which  the  case  of  Devers  v.  Howard  was  prosecuted,  so  far  as 
Devers  is  concerned. 

"  A  marked  characteristic  of  this  petition  is  that  while  it  avers  the  bond  sued  on  is  avail- 
able to  the  material  men  mentioned,  this  action  is  not  brought  by  the  city  to  their  use  as 
relators,  but  is  an  independent  proceeding  by  the  city  as  the  trustee  of  an  express  tru^t. 

"  While  it  is  settled  law  in  Missouri  that  the  trustee  of  an  express  trust  may  sue  in  his 
own  name,  inasmuch  as  this  trustee  bore  a  dual  relation  to  this  bond,  the  circumstances  of 
this  case  justified  the  circuit  court  in  sustaining  the  demurrer.  The  right  of  the  material 
men  under  the  contract  and  bond  is  independent  of  the  city  and  they  are  not  bound  by  the 
settlement  with  the  city.  For  this  reason,  as  the  city  has  settled  its  claim  with  the  con- 
tractor and  paid  over  the  balance  due  from  it  on  the  contract,  it  ought  not  to  be  permitted 
again  to  sue  without  disclosing  its  trust  character,  otherwise  it  may  turn  out  that  it  might 
recover  the  amount  due  the  material  men,  and  the  defendants  still  be  liable  to  suit  at  the 
instance  or  in  the  names  of  the  several  material  men.  So  far  as  the  city  is  concerned,  of 
course  it  has  no  right  to  bring  the  suit  in  its  own  right  after  the  settlement  it  pleads. 


354  JN  WHOSE  NAME  THE  ACTION  SHOXTLD  BE  BROUGHT. 

TODD  v.  WEBER  ET    AL. 

Court  of  Appeals  of  New  York,  February,   1884. 

[95  ^V.    Y.   181.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court,  which 
reversed  a  judgment  in  favor  of  defendants,  entered  upon  the  report  of 
a  referee. 

The  nature  of  the  action  and  the  material  facts  are  stated  in  the 

opinion. 

J?oder/  S.  Green,  for  appellants. 

Wr7t.  H.  Arnoux,  for  respondent. ^ 

Danforth,  J. — The  complaint  is  two-fold:  First:  That  the  defendant's 
testator,  the  father  of  the  plaintiff,  although  not  the  husband  of  her 
mother,  being  applied  to  by  Margaret  Voris,  Francis  A.  Knapp,  Hester 
A.  Knapp,  and  Louise  A.  Story  to  provide  for  the  plaintiff,  promised 
them  that  he  would  pay  for  her  maintenance,  support,  and  education, 
by  making  due  and  sufficient  provision  for  her  by  his  last  will,  in  con- 
sideration that  they  would  support  her  during  the  term  of  his  natural 
life  ;  avers  that  these  persons  were  relatives  of  the  plaintiff's  mother, 
and  that  upon  this  promise  they  maintained,  cared  for,  educated,  and 
supported  the  plaintiff,  up  to  June  25,  1879,  when  the  testator  died. 

Second :  A  promise  by  the  testator  to  the  plaintiff,  and  other  persons 
acting  in  her  behalf,  that  he  would  support  and  maintain  her  so  long 
as  she  should  live. 

The  testator  made  no  provision  for  the  plaintiff  by  will  or  otherwise. 

These  promises  were  denied  by  the  defendants,  and  the  referee,  to 
whom  the  issues  were  referred,  found  against  the  plaintiff,  because  in 
his  opinion  no  legal  claim  had  been  established,  lamenting  at  the  same 
time  "that  the  simplicity  and  ingenuousness  of  the  plaintiff  and  her 
witnesses" — the  persons  above  referred  to — "had  been  practiced 
upon."  On  appeal  to  the  General  Term  that  court  held  that  the 
plaintiff  might  recover  upon  the  first  cause  of  action,  but  as  to  the 
second  that  no  case  was  made  out;  reversed  the  judgment  which  had 
followed  the  report  of  the  referee  and  ordered  a  new  trial.  From  that 
order  the  defendants  appealed  to  this  court,  assenting  that  if  the  order 
should  be  affirmed,  judgment  absolute  should  be  rendered  against 
them.     (Code,  §  191.) 

"As  held  in  Devers  v.  Howard,  el  al,  supra,  these  material  men  can  sue  in  the  name  of  the 
city  to  their  use,  and  control  said  actions,  or  in  their  own  names,  but  the  city  upon  its  own 
showing  is  estopped  from  suing  under  the  circumstances  of  this  case  without  averring  that 
the  action  is  brought  to  the  use  of  the  material  men.  The  demurrer  was  properly  sustained 
and  the  judgment  will  be  affirmed  without  prejudice  to  the  right  of  the  several  material  men 
to  proceed  in  their  own  name  or  in  the  name  of  the  city  to  their  respective  uses  as  i  elators, 
in  which  they  will  control  their  own  suits  and  the  judgment  on  demurrer  in  th'  case  will- 
constitute  no  bar." 

1  The  arguments  are  omitted. 


TODD  V.   WEBER    ET   AL.  355 

We  think  the  referee  and  the  General  Term  came  to  a  correct  con- 
clusion in  regard  to  the  plaintiff's  right  under  the  second  division  of 
her  complaint,  and  shall  confine  our  discussion  to  the  case  made  under 
its  first  branch. 

The  plaintiff  was  born  June  27,  1852,  her  mother  having  been 
seduced  by  the  testator  under  promise  of  marriage.  The  mother  was 
hardly  more  than  a  child  herself,  and  had  no  means  of  her  own.  She 
was  living  with,  and  wholly  dependent  upon,  her  own  mother,  who 
was  then  a  widow.  At  its  birth,  the  testator  received  the  child  into 
his  arms.and  in  the  presence  of  witnesses  acknowledged  his  paternity. 
She  remained  at  her  grandmother's  nine  or  ten  years,  and  during  that 
period  was  visited  often  by  the  testator,  who  at  all  times  manifested 
great  affection  for  her,  and  frequently  told  both  the  mother  and  grand- 
mother "that  he  wished  "  them  "to  take  good  care  of  the  child  and 
bring  her  up  right,  and  he  w^ould  see  that  it  was  all  right.  "  As  these 
assurances  were  given  after  as  well  as  before  he  had  married  another 
woman,  it  is  difficult  to  believe  that  the}'  related  to  any  other  than 
pecuniar}^  satisfaction  for  the  services  he  invoked.  The  grandmother 
at  all  events  provided  the  child  with  board,  care,  and  clothing,  paid 
all  necessary  expenses  and  sent  her  to  school,  paying  the  bills. 

In  1 863  or  1 864,  when  asked  by  the  plaintiff's  mother,  ' '  Do  you  remem- 
ber about  3-our  promise  to  do  for  this  child?"  he  said,  "Yes,  and  I 
will  do  well  b}^  her  ;  if  she  outlives  me  I  will  remember  her  in  my  will. " 
Again  in  1870  he  inquired  of  her  mother  how  she  (his  daughter)  was  ; 
how  she  was  getting  along  with  her  music  ;  if  she  was  going  to  school ; 
what  music  teacher  she  had.  Being  informed,  he  told  her  mother  "  to 
give  her  all  the  lessons  she  would  take";  the  mother  replied,  "that 
would  cost  something  ";  and  he  said,  "You  go  on  and  have  her  take 
them;  never  mind  about  that,  I  will  see  that  j'ou  are  well  paid."  In 
1876  his  attention  was  again  called  to  his  promise  to  provide  for  the 
plaintiff,  and  he  was  asked,  "  if  he  had  forgotten  it,"  he  said,  "  I  have 
not,  I  shall  remember  her  in  m}-  will  if  she  outl'ves  me."     .      .     .^ 

1  Reviewing  the  evidence,  the  'ourt  (per  Danforth,  J.)  continued  from  this  point  as 
follows:  "  She  [the  plaintiff]  lived  about  two  years,  just  after  1S70,  with  her  mother,  and 
then  with  Mrs.  Story  and  other  relatives  until  1S79.  During  this  time  Mrs.  Story  boarded 
her  and  paid  for  her  music  lessons,  and  clothes,  and  other  expenses.  To  Mrs.  Knapp,  her 
aunt,  who  during  a  long  period  cared  for  the  plaintiff,  testator  said  in  substance,  as  he  had 
before  said  to  her  mother  and  her  grandmother,  among  other  things,  '  I  want  you  to  g  ve 
her  a  good  musical  education  ';  and  she  speaking  of  the  cost,  he  said,  '  Don't  worry  about 
that,  you  will  get  it  all  back.'  Being  asked  in  what  way,  he  said,  '  I  intend  to  do  well  by 
her  in  my  will,  them  that  do  well  by  her  wijl  be  well  paid.'  He  wanted  to  know  who  was 
taking  care  of  her,  and  Mrs.  Knapp  replied,  'We  are  all  doing  for  her.'  This  occurred  in 
1S60.  Afterwards,  in  1S75  or  1S76,  manifesting  the  same  interest  in  his  child  and  the  same 
intentions  in  regard  to  her,  he  inquired  of  Mrs.  Knapp,  in  the  presence  of  Mrs.  Storj-,  c-n- 
ceming  her  and  her  progress  in  music,  expressed  satisfaction  at  her  success,  and  his  wish 
that  she  should  receive  a  good  education  in  that  science.  As  to  the  expense,  he  repeated, 
'You  will  get  that  all  back.  I  have  enough  of  this  world's  goods.  I  am  only  living  for  a 
name.'  When  they  asl?ed  'if  he  could  not  do  something  for  her  now, '  he  said,  'Not  now,  but 
as  I  said  before,  I  will  do  well  by  her;  I  will  remember  her  in  my  will,'  and  with  other  con- 
versation added  in  conclusion, 'Well,  take  good  care  of  her,  .  .  .  you  will  all  be  well  paid.' " 


356  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

The  plaintiff  was  informed  by  her  relatives  of  these  promises  of  the 
testator,  and  with  that  knowledge,  and  in  reliance  upon  them,  assured 
the  different  persons  who  were  taking  care  of  and  providing  for  her, 
(and,  among  other  times,  after  she  was  twenty-one  years  of  age),  that 
whatever  they  did  for  her  she  would  when  able  repay. 

It  is  needless  to  recall  more  of  the  testimony.  It  is  in  no  respect  con- 
tradicted, and  has  been  accepted  as  credible  by  the  learned  referee  and 
the  General  Term.  The  plaintiff  from  her  birth  to  the  commencement 
of  this  action  has  been  cared  for,  maintained,  and  educated  by  those 
relatives,  each  at  different  periods  and  at  large  expense.  Its  amount 
has  been  found  and  stated  by  the  learned  referee.  He  says  :  "  From 
the  time  of  the  birth  of  the  plaintiff  to  the  time  she  went  to  live  with 
her  cousin  (Mrs.  Story),  the  plaintiff's  grandmother  and  aunt  have  paid, 
laid  out,  and  expended  for  her  in  various  necessary  ways,  and  for  her 
education  and  maintenance,  services  and  moneys,  amounting^  in  all  to 
$17,069.43,  and  the  plaintiff's  cousin,  with  whom  she  has  lived  from 
1S74  to  the  commencement  of  the  suit,  has  also  paid  out  considerable 
sums  of  money  for  her  support  and  maintenance,  amounting  in  all  to 

$3,799-" 

Notwithstanding  all  this,  the  learned  referee  felt  constrained  to  dis- 
miss the  complaint.  He  thought  the  testator  had  practiced  dissimula- 
tion, but  so  successfully  that  he  was  bound  onl}^  by  his  own  conscience, 
and  that  no  action  lay  against  him  though  he  did  not  perform  his 
promises.  We  can  not  agree  to  this.  In  our  opinion  there  is  in  the 
record,  as  above  quoted,  evidence  of  an  agreement  made  upon  valuable 
consideration,  and,  therefore,  also  binding  in  law  upon  him  and  conse- 
quently upon  his  estate.      .  .* 

1  On  this  question  of  substantive  law,  the  court  (per  Dakforth,  j.)  continued  from  this 
point  as  follows:  "  It  is  true  that  by  the  common  law  the  child  that  is  born  before  marriage 
is  so  far  nidlius  filius  that  he  can  not  inherit;  bu  he  may  acquire  rights.  Nor  is  his  puta- 
tive father  under  any  legal  liability  at  common  law  to  support  him,  Moncrief  v.  Ely,  19 
Wend.  405.  Yet  it  is  said  he  may  take  him  out  of  the  parish,  Sherman's  Case,  i  Ventris,  210, 
and  maintain  him,  or  by  will  '.eave  any  of  his  propert}'  to  him,  or  in  his  lifetime  make  other 
provision  for  his  support.  So  if  he  acknowledges  or  adopts  the  child  as  his  own,  and  at  his 
request  it  is  cared  for  by  others,  he  becomes  liable  in  favor  of  the  party  providing  for  it, 
Moncrief  v.  Ely,  supra;  Birdsall  v.  Edgerton,  23  Wend.  619,  and  remains  so  until  he  re- 
nounces the  child  or  otherwise  notifies  the  persons  who  have  it,  that  he  will  no  longer  be 
bound  to  them.  From  these  or  like  circumstances  a  promise  10  make  compensation  may  be 
implied,  and  of  course  such  a  promise  may  also  be  expressed  by  him.  In  either  case  the 
natural  obligation  arising  out  of  the  relation  of  the  putative  father  to  his  child  will  uphold 
a  co.i tract  upon  which  an  action  may  be  sustained.  Heskeih  v.  Gowing,  5  Esp.  131;  Nichole 
V.  Allen,  3  C.  &  P.  36;  In  re,  PlasketVs  Estate,  30  X,.  J.  Eq.  606;  Moncrief  v.  Ely,  supra;  Bitd- 
sall  V.  Edgerton,  sjipra;  Hook  v.  Pratt,  78  N.  Y.  371;  34  Am.  Rep.  539. 

'■'Duncan  v.  Pope,  47  Ga.  445,  cited  by  the  appellant,  goes  no  furtlier  than  to  hold  that  in 
the  absence  of  a  contract  for  his  support  a  bastard  can  not  maintain  an  action  against  his 
putative  father,  or  his  estate.  On  the  other  hand  it  holds  that  if  he  voluntarily  makes  an 
agreement  for  it,  not  only  may  the  father  be  bound  but  his  representatives,  while  Nine  v 
Starr,  8  Greg.  49,  also  cite  1  by  him,  deci  es  only  thac  when  the  mother  alone  is  bound  to 
maintain  the  child  she  can  not  maintain  an  action  upon  the  father's  agreement  to  pay  her 
for  doing  so.  But  even  in  such  a  case,  if  any  provision  for  the  child  beyond  such  legal  main- 
tenance be  included  in  the  consideration,  it  is  sufficient,  and  the  promise  valid.  Smith  v. 
Roche,  6  C.  B.  (N.  S.)  223;  Follit  v.  Koetzow,  2  E.  &  E.  730. 


TODD  V.  WEBER  ET  AL.  357 

If  I  am  right  in  these  conclusions  there  is  before  us  a  valid  contract 
made  between  the  testator  and  the  several  persons  named,  for  the  bene- 
fit of  the  plaintiff. 

The  only  remaining  question  is  one  of  the  parties — who  should  bring 
the  action  for  its  enforcement.  As  she  had  the  sole  beneficial  interest 
in  the  contract,  it  was,  we  think,  properly  brought  in  her  name.  This 
would  seem  plain  enough  upon  principle,  but  it  is  also  well  established, 
by  authority.  In  Button  and  Wife  v.  Poole,  2  Levinz,  210,  decided  in 
the  time  of  Charles  II.  [1677],  a  son  promised  his  father,  upon  a  con- 
sideration moving  from  him,  to  pay  his  daughter  ^1,000.  Upon 
default  the  daughter  sued.  After  verdict  for  the  plaintiff,  it  was  argued 
in  arrest  of  judgment  that  the  action  should  have  been  by  the  father, 
not  the  daughter,  for  the  promise,  it  was  said,  was  made  to  the  father, 
and  the  daughter  was  neither  privy  nor  interested  in  the  consideration, 
nothing  being  due  to  her.  The  court  seemed  to  hesitate,  but  after 
more  than  one  hearing  and  citation  by  c6unsel  of  cases />w  and  con,  it 
was  held  in  favor  of  the   plaintiff,  the  chief  justice  saying  that  there 

"  In  Moncriefv.  Ely\  supra,  it  is  held  that  at  common  law  an  action  will  lie  against  him  for 
the  support  of  his  child  upon  an  express  promise,  or  if  he  had  adopted  the  child  as  his  own, 
upon  an  implied  promise  in  favor  of  the  party  maintaining  it;  but  the  plaintiff  in  that  case 
failed  to  recover,  because  there  was  no  evidence  of  a  promise  <  xpress  or  implied.  This  case 
was  followed  in  Birdsall  v.  Edgerton,  supra.  Indeed  it  has  never  yet  been  held  that  there 
was  any  thing  illegal  in  an  undertaking  by  a  putative  father  to  support  his  bastard,  or  to 
pay  a  sum  of  money  iu  consideration  of  such  support  being  furnished  by  another,  though 
that  other  person  was  the  mother  of  the  child.  Upon  principle  and  authority  such  a  promise 
must  be  regarded  as  valid. 

"  But  notwithstanding  this,  the  learned  counsel  for  the  appellant  argues  that  the  promises 
made  by  the  testator  to  Mrs.  Voris,  Mrs.  Knapp,  and  Mrs.  Story  were  without  consideration 
—mere  naked  promises,  and  not  enforceable.     The  learned  referee  finds  that  the  testator 
did  not  expressly  promise  to  pay  the  plaintiff's  relatives,  nor  any  one  else,  for  the  expenses 
incident  'to  her  maintenance  and  support,  and  whatever  was  said  by  him  was  contingent 
on  the  plaintiff's  outliving  him,  and  was  limited  to  such  provision  as  he  might  make  for  her  by 
his  will.'     And  before  us  the  appellant,  while  contending  that  the  testator  made  no  express 
promise  to  pay  them,  adopts  the  language  of  the  referee  and  declares  that  '  his  promise  was 
contingent  on  plaintiff's  outliving  him,'  adding,  'his  words  may  have  held  out  a  hope  of  re- 
payment, l.ut  there  wa^  no  promise.'     If  it  rested  there  it  would  be  difficult  for  a  court  to 
hesitate  in  pronouncing  against  such  designed  evasion  of  obligation.     There  was  in  any 
aspect  a  precise  representation  of  an  intention  on  the  part  of  the  testator  at  a  future  time, 
and  in  a  specified  manner,  to  assume  the  burden  of  expense  for  those  things  he  solicited  his 
child's  relatives  to  perform.     By  that  avowed  intention  they  were  induced  to  act.    It  is  im- 
material that  no  promise  in  response  thereto  was  made  by  them.    Their  conduct  was  a  suffi- 
cient acceptance  of  his  proposition  and  furnished  the  consideration  for  his  undertaking.    It 
was  indeed  contingent.     It  consisted  in  the  doing  of  acts  by  the  promisees,  which,  it  is  true, 
they  need  not  have  done  unless  they  chose,  but  being  done  at  the  instigation  of  the  tesLator, 
completed  the  contract  and  made  the  promise  binding.    Coles  v.  Pilkington,  X,.  R.,  19  Eq.  Cas. 
17S;  Booth  V.  C.  Rolling  Mill  Co.,  74  N.  Y.  15.     In  a  book  of  considerable  antiquity,  but  still 
of  authority  (Doctor  and  Sttident,  dialogue  2,  chap.  24),  after  speaking  of  naked  promises 
upon  which  no  action  would  lie,  the  learned  author  says:    'If  he  to  whom  the  promise  is 
made,  have  a  charge  by  reason  of  the  promise,  which  he  hath  also  performed,  then  in  that 
case  he  shall  have  an  action  for  that  thing  that  was  promised,  though  he  tha'.  made  the 
promise  have  no  worldly  profit  by  it.'     And  among  other  illustrations  it  is  said,  '  If  a  man 
say  unto  another,  marry  my  daughter  and  I  will  give  thee  twenty  pounds;  upon  this  prom, 
ise  an  action  lieth  if  he  marry  his  daughter.'     And  in  this  case  the  author  says,   'He  can 
nol  discharge  the  promise,  though  he  thought  not  to  be  bound  thereby;  for  it  is  a  goo  Icon- 
tract,  and  he  may  have  quid  pro  quo,  that  is  to  say,  the  preferment  of  his  daughter  for  his 
monev.'     And  so  here  the  tes'.ator  is  bound,  although  he  intended  only  to  prevaricate. 


358  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

was  such  apparent  consideration  of  affection  from  the  father  to  his 
children,  for  whom  nature  obliges  him  to  provide,  that  the  considera- 
tion and  promise  to  the  father  may  well  extend  to  the  children,  and  the 
judgment  then  given  was,  on  error  brought,  aflfirmed  in  the  Exchequer 
Chamber. 

A  century  later  Lord  Mansfield,  in  Martin  v.  Hifid,  Cowper,  437-443, 
referring  to  Diitton  v.  Poole,  supra,  said,  "  It  was  a  matter  of  surprise 
how  a  doubt  could  have  arisen  in  that  case.  " 

A  few  years  after,  in  1806,  a  similar  question  came  before  the  Supreme 
Court  of  this  State,  in  Schemerhorn  v.  Vanderheyden,  i  Johns.  139, 
where  the  facts  were  that  in  consideration  of  one  J.  C,  the  father  of 
the  plaintiff's  wife,  assigning  to  the  defendant  certain  personal 
property,  the  latter  promised  to  purchase  for  the  daughter  a  cherry 
desk.  He  failed  to  do  so,  and  for  that  breach  the  action  was  brought 
by  the  husband  of  the  daughter,  he  suing  in  her  right.  It  was  ob- 
jected that  no  action  could  be  maintained  by  the  plaintiff  on  the 
promise  made  to  J.  C.  ;  but  the  court  held  otherwise,  saying,  "where 
one  person  makes  a  promise  to  another  for  the  benefit  of  a  third  person, 
that  third  person  may  maintain  an  action  on  such  promise,"  citing 
Button  V.  Poole,  stipra,  and  sajnng  the  same  principle  has  since  that 
time  been  repeatedly  sanctioned  by  the  decisions  of  the  English  courts. 

A  different  rule  is  said  to  prevail  in  those  tribunals  at  the  present 
time,  per  Wightman,    J.,   in    Tweddle  v.  Atkinson,  i   Best    &  Smith, 

"The  books  are  full  of  cases  where  such  contracts  are  supported.  Among  modern  ones 
are  VAmoreux  v.  Gould,  7  N.  Y.  349,  and  Marie  v.  Garrison,  S3  id.  14.  In  the  first  it  was 
held  that  where  in  consideration  that  A.  would  pay  certain  notes  upon  which  he  was  an  iu- 
dorser,  but  not  then  charged  as  such,  or  under  any  obligation  to  pay  the  same,  B.  agrees  to 
pay  him  a  certain  sum  of  money;  if  A.  does  pay  the  notes  he  furnishes  a  consideration  for 
the  agreement,  and  may  enforce  it  against  B.  It  is  obvious  that  at  the  time  the  agreement 
■was  entered  into  there  was  no  mutuality  in  the  contract,  because  A.  came  under  no  obliga- 
tion to  pay;  but  when  he  did  paj',  the  consideration  was  supplied  and  the  promise  attached. 
So  in  a  case  where  an  order  for  goods  is  given,  it  is  said  to  be  in  effect  an  offer  to  purchase 
and  the  sale  to  be  complete  when  they  are  furnished,  and  when  one  offers  t  '  supply  goods 
to  another  at  a  certain  price,  he  is  bound  by  an  order  given  in  accordance  with  the  tender. 
Upon  the  same  principle  a  rew^ard  may  be  legally  claimed  by  one  complying  with  the  con- 
ditions on  which  it  is  offered  although  the  promisor  could  sue  no  one  for  not  doing  the 
thing  called  for.  Jones  v.  Phoenix  Bank,  8  N.  Y.  228;  Pierson  v.  March,  82  id.  503.  And  it 
makes  no  difference  that  the  promise  is  to  make  compensation  by  will. 

"At  the  death  of  the  testator  the  consideration  had  been  f ul  ly  performed,  an  d  the  promise 
attached.  Its  enforcement  therefore  may  stand  upon  the  principle  that  w'  ere  one  person 
assumes  a  charge,  or  alters  his  position,  or  does  any  act  by  reason  of  a  promise  or  repr  sen- 
tation  made  by  another,  the  person  making  the  promise  or  representation  can  not  withdraw 
from  it,  but  is  bound  by  it,  although  he  did  not  intend  to  be.  Moreover  in  the  case  before 
us  the  testator  did  have  a  full  quid  pro  quo.  What  he  desired  was  that  his  daughter  should 
be  well  cared  for  and  educated.  He  wanted  also  that  this  should  be  done  by  his  daughter's 
relatives,  and  to  stimulate  them  to  do  that  which  they  were  in  no  sense  bound  to  do,  he 
represented  or  promised  that  provision  should  be  made  for  her  by  will.  It  was  as  if  he  had 
said,  '  Take  good  care  of  her,  clothe  and  feed  her  and  educate  her  during  my  lifetime,  and 
at  my  death  she  shall  have  from  my  estate  a  sum  at  least  equal  to  the  cost  of  all  you  do  and 
expend  for  her.'  He  had  his  wish.  They  performed  with  his  sanction  the  acts  which  he 
desired.  He  h  is  not  done  the  thing  he  promised  to  do  in  return,  and  as  his  death  limited 
the  time  for  his  performance,  his  omission  and  the  happening  of  that  event  constitute  a 
breach  and  complete  a  cause  of  action  which  the  law  will  enforce  against  his  estate.  Jacob. 
son  V.  Executors  of  Le  Grange,  3  Johns.  199;  Patterson  v.  Patterson,  13  id.  379" 


TODD  v.  WEBER  ET  AL.  359 

Q,.  B.  393  ;  loi  Eng.  Com.  Law  R.  393,  and  there  even  in  equity  the 
doctrine  of  the  earlier  cases  may  be  considered  as  unsettled.  (Pollock's 
Principles  of  Contract,  196.)  But  in  this  state  it  has,  I  believe,  been 
uniformly  adhered  to.  In  181 7  it  seems  to  have  been  approved  by 
Chancellor  Kent,  Cumberla7id  v.  Codrington,  3  Johns.  Ch.  254.  The 
question  came  directly  before  him  in  1823,  and  it  was  answered  in  the 
same  way  upon  the  principle  asserted  in  Dutton  v.  Poole,  supra,  and 
the  learned  chancellor  held  that  where  a  father  conveyed  land  to  his 
son  on  his  covenanting  to  pay  an  annuity  to  his  mother  during  her 
widowhood,  she  might  maintain  an  action  on  the  covenant  so  made  for 
her  benefit,  Shepard  v.  Shepard,  7  J.  Ch.  56  ;  and  in  1845  his  successor 
says  it  has  been  the  settled  law  from  the  time  of  the  decision  of  the 
case  of  Duttofi  v.  Poole,  supra,  down  to  the  then  present  time,  that  a 
party  for  whose  benefit  a  promise  is  made  may  sue  in  assumpsit  upon 
such  promise,  although  the  consideration  for  such  promise  was  a  con- 
sideration between  the  promisor  and  a  third  party. 

J-.uch  also  was  the  conclusion  of  the  late  Supreme  Court  of  this  state, 
ifter  a  full  examination  of  the  authorities,  in  Barker  v.  Bucklin,  2 
Denio,  45.  Also  by  the  present  Supreme  Court  in  1859,  in  Judson  v. 
Gray,  afiirmed  by  this  court,  17  How.  Pr.  289.  In  Burr  v.  Beers,  24 
N.  Y.  178,  the  judgment  was  in  terms  supported  upon,  as  was  said, 
' '  the  broad  principle  that  if  one  person  make  a  promise  to  another  for 
the  benefit  of  a  third  person,  that  third  person  may  maintain  an  action 
on  the  promise, "  and  Denio,  J.,  after  a  review  of  the  authorities,  said, 
*'\Ve  must  regard  the  point  as  definitely  settled  so  far  as  the  courts  of 
this  state  are  concerned.  " 

It  seems  unnecessary  to  follow  the  line  of  authorities  further.  The 
plaintiff  is  within  the  rule.  The  contract  upon  which  she  sues  was 
made  for  her  benefit  as  its  object.  It  is  the  doctrine  of  the  first  and 
last  case  that  she  may  enforce  it.  This  conclusion  is  also  in  harmony 
with  the  general  current  of  authority.  In  the  Supreme  Court  of  the 
United  States,  Hendricks  v.  Li?idsay,  93  U.  S.  Rep.  (3  Otto)  143,  it  is 
said,  "The  right  of  a  party  to  maintain  assut>ipsit  on  a  promise  not 
under  seal,  made  to  another  for  his  benefit,  although  much  contro- 
verted, is  now  the  prevailing  rule  in  this  country. "  This  conclusion 
makes  it  unnecessary  to  consider  the  ground  on  which  the  court  below 
held  that  a  partial  recovery  could  be  had  in  this  case. 

It  may  be  conceded  that  if  the  plaintiff  had  not  outlived  the  testator, 
no  action  at  all  would  lie,  for  that  she  should,  of  the  two,  be  the  long- 
est liver  was  one  of  the  conditions  upon  which  his  promise  was  made. 
He  died  first.  The  condition  then  was  fulfilled.  The  plaintiff  is, there- 
fore, entitled  to  recover  of  the  defendants  the  amount  found  by  the 
referee  to  have  been  paid,  laid  out  and  expended  for  her  by  her  rela- 
tives, as  above  stated,  together  with  interest  from  the  death  of  the  tes- 
tator. 


360  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

The   order  of  the  General  Term  should,  therefore,  be  affirmed,    and 
judgment  absolute  ordered  for  the  plaintiff,  with  costs. 
All  concur,  except  Andrews,  J.,  who  dissents. 

Order  affirmed  atid  judgment  accordingly} 


BUCHANAN  v.  TILDEN. 

Court  of  Appeals  of  New  York,  January  24,    1899. 

[158  N.  Y.   109.] 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme  Court 
in  the  first  judicial  department,  entered  June  2,  1896,  reversing  a  judg- 
ment in  favor  of  plaintiff  for  $54,421.18,  entered  upon  a  verdict  directed 
by  the  court,  and  ordering  a  new  trial. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinions. 

Lo7iis  S.  Phillips  and    William  B.  McNiece,  for  appellant. 

Delos  McCtirdy,  for  respondent.'' 

Bartlett,  J. — At  the  close  of  plaintiff's  case,  both  parties  moved 
for  a  directed  verdict,  and  neither  asked  to  go  to  the  jury  on  any  ques- 
tion. 

The  trial  judge  thereupon  directed  a  verdict  for  the  plaintiff.  The 
Appellate  Division,  with  a  divided  court,  reversed  the  judgment  in 
plaintiflPs  favor  entered  upon  the  verdict  and  ordered  a  new  trial.  The 
plaintiff  has  appealed  from  that  order,  stipulating  for  judgment  abso- 
lute in  case  of  affirmance,  and  presents  for  our  determination  a  single 
question  of  law  arising  upon  undisputed  facts. 

Before  stating  that  question,  reference  will  be  made  to  the  material 
facts. 

The  plaintiff  is  the  adopted  daughter  of  jMoses  Y.  Tilden,  a  brother 
of  the  late  Samuel  J.  Tilden.  The  defendant  is  an  heir  at  law  and  next 
of  kin  to  Samuel  J.  Tilden.  On  the  20th  day  of  October,  1886,  the 
defendant  began  an  action  against  the  executors  of  the  estate  of  Sam- 
uel J.  Tilden  and  others,  praying  judgment  that  the  thirty-fifth  article  of 

1  Compare  Sullivan  v.  Sullivan  (1900),  161  N.  Y.  554,  557,  given  in  the    ext,  infra. 

See  also,  Little  v.  Banks  (1881),  85  N.  Y.  289.  [Action  to  recover  damages  sustained  by  the 
plaintiffs  as  law-book  sellers  for  an  alleged  refusal  by  the  defendants  to  sell  and  d  liver  to 
them  certain  copies  of  the  New  York  reports,  published  by  the  defendants  under  a  contract 
with  the  state.  This  contract  provided  that  the  publishers  (the  defendants)  should  furnish 
any  volume  published  under  the  contract  ti  any  law-bookseller  in  New  York  City  or  Albanv 
who  applied  therefor  and  offered  the  contract  price,  and  that  on  failuresotodo  the  publishers 
should  "  forfeit  and  pay  the  sura  of  $100,  hereby  fixed  and  agreed  upon,  not  as  a  penalty  but 
as  liquidated  damages  .  .  .  to  be  sued  for  and  recovered  by  the  person  or  persons  so  ag- 
grieved." Plaintiff's  offer  was  within  the  terms  of  this  contract  j  A  recovery  was  permit- 
ted upon  "the  broad  principle  of  public  policy  essential  to  the  public  welfare."— £rf. 

2  The  arguments  are  omitted. 


BUCHANAN  V.  TILDEN.  361 

Mr.  Tilden's  will  be  adjudged  void,  and  that  the  property  therein  men- 
tioned be  declared  undisposed  of  by  any  provision  thereof. 

The  defendant  being  without  means  to  prosecute  this  action,  applied 
to  Robert  D.  Buchanan,  the  husband  of  the  plaintiff,  for  assistance  in 
raising  the  funds  necessary  to  carry  on  the  litigation.  Buchanan 
expressed  his  willingness  to  aid  defendant  if  certain  arrangements  were 
made,  and  said  that  his  uncle,  Robert  G.  Dun,  might  be  willing  to 
advance  the  money  required. 

The  defendant  expressed  himself  as  willing  "to  do  anything  in  the 
world  to  raise  the  money — to  make  any  arrangement  that  was  reason- 
able," and  said  to  Buchanan  that  if  the  contest  was  successful,  Mrs. 
Buchanan  "  should  come  in  share  alike  with  the  rest  of  them.  "  It  was 
evidently  within  the  contemplation  of  the  parties  that  if  this  action  of 
the  defendant  was  successful,  the  result  would  be  that,  as  to  a  very 
large  part  of  his  estate,  Mr.  Tilden  died  intestate,  and  that  while  the 
plaintiff",  as  an  adopted  child  of  Moses  Y.  Tilden,  and  not  of  Samuel  J. 
Tilden's  blood,  might  take  no  part  thereof,  yet  there  were  the  strongest 
moral  and  famil}^  reasons  why  she  should  be  regarded  as  an  heir  at  law 
and  next  of  kin. 

Buchanan  induced  Dun  to  make  certain  necessarj'  advances  to  the 
extent  of  five  thousand  dollars,  and  Dun  consented  to  do  so  solely  on 
the  ground  that  plaintiff"  was  to  share  the  fruits  of  a  successful  contest, 
he  being  unacquainted  with  the  defendant. 

This  portion  of  the  money  was  advanced  by  Dun  about  the  time  the 
defendant  began  his  action,  and  he  was  then  presented  to  Dun  and 
repeated  to  him  the  promise  in  regard  to  plaintiff"  sharing  alike  with 
the  rest  of  the  heirs  that  he  had  made  to  her  husband.  In  February, 
1887,  the  defendant  asked  Buchanan  if  he  could  raise  more  monej'. 

Buchanan  testified  that  in  response  to  this  application,  ' '  I  told  him  that 
I  thought  before  any  more  money  was  talked  about  that  the  arrangement 
that  had  been  talked  about  had  better  be  whipped  into  line  .  .  .  and 
he  said  they  were  all  perfectly  willing  to  share  and  share  alike  in  that 
matter.  I  said  that  does  not  satisfy  me  ;  that  is  not  what  I  want ;  I 
want  some  positive  agreement.  After  considerable  further  talk,  he  said 
that  his  brothers  and  sisters  were  scattered  ;  that  he  could  not  get  it 
into  shape  just  then,  but  that  he  had  to  have  some  more  money  and  had 
to  have  it  right  away,  and  in  order  to  get  the  money  and  have  it  right 
away,  he,  on  his  own  personal  behalf,  having  nothing  to  do  with  his 
brothers  or  sisters  in  any  sense,  would  obligate  himself  to  pay  per- 
sonally fifty  thousand  dollars."  Thereupon  defendant  and  Buchanan 
went  to  the  office  of  counsel  where  the  following  letter  was  drawn  up, 
signed  by  defendant,  and  delivered  by  Buchanan  to  Dun  : 

New   York,  February  19th,  1887. 
"  Robert  G.   Dun,    Esq.,  No.  314  B'way.,  N.  Y.  City, 

' '  My  Dear  Sir  :  It  is  understood  between  Mr.  R.  D.  Buchanan  and  myself  that 
in  the  event  of  the  success  of  the  proceedings  now  pending,  or  any  which  may  be 


362  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

taken,  to  practically  set  aside  the  thirty-fifth  section  of  the  will  oi  my  late  uncle, 
Samuel  J.  Tilden,  in  view  of  the  assistance  looking  to  that  end,  which  has  been 
and  may  be  rendered  by  Mr.  Buchanan  as  well  as  by  yourself,  that  I  will,  and 
hereby  do,  become  responsible  for  the  payment  to  Mrs.  Adelaide  E.  Buchanan, 
or  her  order,  of  the  sum  of  fifty  thousand  dollars. 

"  It  is  further  understood  between  us  that,  while  I  am  not  strictly  authorized 
to  speak  in  behalf  of  my  brothers  and  sisters  in  that  respect,  that  from  what  has 
already  transpired  between  me  and  them,  in  the  event  of  such  success,  they  will 
be  disposed  to  act  generously  with  Mrs.  Buchanan  in  the  premises. 

"  Yours  very  resp'y., 

"George  H.   Tilden." 

It  will  be  observed  that  this  letter,  while  charging  defendant  in  a 
fixed  sum,  leaves  open  the  general  adjustment  between  plaintiff  and 
defendant's  brothers  and  sisters. 

After  receiving  this  written  declaration  of  the  defendant,  Dun  con- 
tinued his  advances  until  they  aggregated  over  twenty  thousand  dol- 
lars. 

A  long  contest  followed  in  the  courts  ;  defendant  succeeded  in  his 
action,  and  he  and  others  became  entitled  to  a  very  large  sum  of  money 
that  the  late  Samuel  J.  Tilden  supposed  he  had  dedicated  to  public  uses 
under  the  thirty-fifth  article  of  his  will. 

Dun  testified  that  the  defendant  had  repaid  his  advances  ;  that  they 
were  collected  through  his  attornej-,  but  he  thought  an  action  was 
brought  against  him. 

Defendant  paid  plaintiff  eight  thousand  one  hundred  and  fifty  dol- 
lars on  account  of  the  fifty  thousand  dollars  under  the  letter  of  Febru- 
ary 19th,  1887. 

As  nothing  more  was  paid,  and  plaintiff  received  no  recognition  from 
the  heirs  at  law  and  next  of  kin  of  Mr.  Tilden,  she  brought  this  action 
to  recover  the  balance  of  the  fifty  thousand  dollars  and  interest. 

One  of  the  learned  judges  of  the  Appellate  Division  thus  states  the 
question  of  law  presented  in  this  case  :  ' '  Can  a  wife  enforce  payment 
in  her  own  name  where  the  husband  renders  valuable  services  and 
stipulates  with  the  person  to  whom  the  same  are  rendered  that  compen- 
sation therefor  shall  be  made,  not  to  him,  but  to  her?  " 

In  answering  this  question  in  the  negative,  the  main  positions  of  the 
court  below  may  be  briefly  stated. 

While  admitting  that  there  is  a  distinct  class  of  cases  where  promises 
have  been  made  to  a  father,  or  other  near  relative,  for  the  benefit  of  a 
child,  or  other  dependent  relative,  in  which  the  person  for  whose  benefit 
the  promise  was  made  has  been  permitted  to  maintain  an  action  for  the 
breach  of  it,  and  further  admitting,  for  argument's  sake,  that  the  duty 
and  obligation  of  the  husband  to  the  wife  is,  as  a  consideration,  quite 
equal  to  the  duty  and  obligation  of  the  father  to  the  child,  3-et  the  fact 
still  remains  in  the  case  at  bar  that  this  is  not  a  contract  looking 
towards  the  discharge  of  the  obligation   which   the  lutsband  owed  to 


BUCHANAN  V.  TILDEN.  333 

support  the  wife,  and  must,  therefore,  be  supported,  if  at  all,  upon  the 
mere  relation  of  husband  and  wife. 

The  learned  court  then  states  that  it  has  found  no  authority  for  hold- 
ing that  a  promise  made  to  the  husband  by  a  third  person  for  the 
benefit  of  his  wife,  which  was  not  intended  to  provide  for  her  support, 
or  to  discharge  the  husband 's  duty  in  that  regard,  could  be  enforced 
by  the  wife. 

It  is  also- intimated  that  there  is  no  disposition  to  extend  the  prin- 
ciple of  some  of  the  cases  relating  to  father  and  child  to  any  other 
relationship. 

As  to  this  latter  suggestion,  we  do  not  think  it  will  be  seriously 
questioned,  on  principle,  that  the  relation  of  husband  and  wife  is  fully 
equal  to  that  of  parent  and  child  as  a  consideration  to  support  a 
promise. 

Before  discussing  this  appeal  in  the  light  of  the  authorities,  we  have 
to  say  that,  in  our  judgment,  the  learned  Appellate  Division  have  failed 
to  give  due  weight  to  certain  controlling  features  of  this  case. 

In  the  first  place,  the  question  formulated  by  the  court  below  does 
not  contain  what  we  regard  as  one  of  the  most  important  points  dis- 
closed by  the  evidence,  to  wit,  the  large  equitable  interest  the  plaintiS 
had  in  this  scheme  to  attack  the  will  under  the  provisions  of  the  agree- 
ment made  to  raise  funds  for  that  purpose.  This  is  not  the  case  simply 
of  a  husband  rendering  valuable  services  to  a  third  party  upon  the 
latter's  promise  to  pay  the  compensation,  not  to  him,  but  to  his  wife. 

While  this  case  embraces  that  feature,  it  involves  the  further  element 
of  the  wife's  joint  interest  in  the  scheme  to  attack  the  will. 

It  may  fairly  be  inferred  from  this  record  that  the  defendant  was 
powerless  to  conduct  the  action  he  had  begun  unless  some  one  furnished 
him  the  funds. 

This  assistance  was  rendered  by  Buchanan  and  Dun,  upon  the  ex- 
press agreement  and  understanding  that  the  plaintiff  should  receive, 
in  case  of  success,  fifty  thousand  dollars  from  defendant  as  part  of  her 
share  of  the  estate,  and  generous  treatment  from  his  brothers  and 
sisters.  Plaintiff,  in  equity  and  good  conscience,  as  an  adopted  child 
of  Moses  Y.  Tilden,  was  entitled  to  come  in  and  share  with  the  other 
heirs  and  next  of  kin  the  large  fund  that  had  been  freed  from  the 
provisions  of  the  will.  When  this  equitable  right,  or  interest,  is 
coupled   with  the  relation  of  husband  and  wife,  we  have  presented  a 

situation  that  affords  ample  consideration  for  the  contract  sued  upon 

a  situation  that  distinguishes  this  action  from  any  of  the  cases  where 
the  party  suing  upon  a  promise  rests  exclusively  upon  a  debt  or  duty 
owed  him  by  the  promisee. 

Another  general  feature  of  this  case,  to  which  we  think  the  court 
below  has  failed  to  give  due  prominence,  is  the  extent  of  the  legal  and 
moral  obligation  resting  upon  a  husband  to  support  and  provide  for  his 
wdfe. 


364  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

A  brief  quotation  from  one  of  the  opinions  below  will  make  this 
point  clear : 

The  court  says  :  "It  is  quite  true  that  the  husband  is  under  an 
obligation  to  support  the  wife,  and  it  may  be  that  any  contract  which 
he  makes  with  a  third  party,  having  for  its  object  the  carrying  out  of 
that  obligation,  would  be  enforced  in  the  courts.  " 

Then  coming  to  the  case  at  bar,  the  court  continues  :  ' '  There  is  no 
obligation,  legal  or  equitable,  here  on  the  part  of  the  husband  towards 
the  wife  to  entitle  her  to  the  performance  of  this  contract. 

"  This  was  not  a  contract  for  her  support,  nor  was  it  one  to  do  any- 
thing which,  under  any  circumstances,  the  husband  could  be  compelled 
to  do.  It  was  simply  an  obligation  on  the  part  of  the  defendant  to  pay 
the  plaintiff  a  sum  of  money,  as  an  independent  fortune  for  her  separate 
estate,  in  case  the  husband  rendered  some  service  to  him.  So  far  as 
the  plaintiff  and  her  husband  were  concerned  as  to  this  contract,  there 
were  no  legal  relations  between  them  ;  they  occupied  no  different  rela- 
tions from  that  of  any  other  man  and  woman, "  etc.,  etc. 

Lt  seems  to  us  that  this  is  an  entire  misconception  of  the  duties  and 
relations  existing  between  man  and  wife.  It  is,  in  effect,  said  that  it  is 
only  the  duty  of  bare  maintenance  that  is  a  consideration  suflScient  to 
support  the  promise  of  a  third  party. 

We  are  of  opinion  that  a  husband  rests  under  other  and  far  higher 
moral  and  legal  obligations  that  the  law  will  recognize  as  a  sufficient 
consideration  to  support  a  covenant  in  favor  of  the  wnfe. 

There  is  no  evidence  in  this  case  to  bear  out  the  statement  that  this 
^vas  not  a  contract  for  the  wife's  support ;  but  assuming  that  she  had 
food,  raiment  and  shelter — the  necessaries  of  life — can  it  be  said  that 
these  represent  the  full  measure  of  the  moral  and  legal  obligations 
imposed  upon  a  husband  by  the  common  law  ? 

Is  it  not  his  bounden  duty,  if  opportunity  offers,  to  provide  for  his 
wife  against  that  day  when  he  may  be  incapacitated  by  disease  or 
removed  by  death  ?  If,  as  in  the  case  at  bar,  the  husband  seeks  to 
provide  for  his  wife,  beyond  the  duty  of  furnishing  food .  and  shelter, 
by  securing  a  fund  to  w^hich  she  is  equitably  entitled,  that  may  perpet- 
uate his  protecting  care  after  he  has  departed  this  life,  shall  it  be  said 
that  this  is  not  an  obligation  that  a  court  can  recognize  as  a  sufiicient 
consideration  to  support  a  covenant  on  her  behalf?  We  are  of  opinion 
that  this  broader  view  of  the  duties  and  obligations  of  a  husband  is  to 
be  invoked  in  determining  the  rights  of  this  plaintiff. 

We  come  then  to  a  consideration  of  this  case  in  the  light  of  precedent. 
The  court  below  recognized  the  strong  equities  of  the  plaintiff's  case 
and  expressed  regret  that  the  action  is  not  sustainable  in  her  behalf. 

Our  full  discussion  of  the  facts  and  the  position  of  the  court  below 
discloses,  we  think,  a  very  strong  case  in  favor  of  the  plaintiff  main- 
taininsT  this  action. 


BUCHANAN  V.  TILDEN.  365 

While  it  is  tnie  that  for  more  than  two  hundred  years  the  courts  of 
England  and  this  country  have  been  discussing  the  vexed  question  of 
when  a  party  may  sue  upon  a  promise  made  for  his  benefit  to  a  third 
party,  yet  we  are  of  opinion  that  under  the  peculiar  facts  of  this  case, 
the  plaintiff  can  recover  by  invoking  legal  principles  that  are  well 
established  by  authorit}-. 

In  order  to  maintain  the  plaintiff's  cause  of  action,  it  is  not  necessary 
to  invoke  the  principle  established  by  Lawrence  v.  Fox,  20  N.  Y.  268,  and 
the  cases  that  have  followed  it  in  this  state,  to  the  effect  that  an  action 
lies  on  a  promise  made  by  a  defendant  upon  valid  consideration  to  a  third 
person  for  the  benefit  of  the  plaintiff,  although  the  latter  was  not  privj- 
to  it.  It  will  be  recalled  in  that  case  that  one  Holly  loaned  the  defend- 
ant Fox  money,  stating  at  the  time  that  he  owed  the  amount  to  the 
plaintiff  Lawrence  for  money  borrowed  which  he  had  agreed  to  pay  the 
then  next  day  ;  the  defendant,  in  consideration  of  the  loan  to  him, 
agreed  to  pay  the  plaintiff  the  then  next  day. 

This  court  in  holding  that  the  plaintiff  Lawrence  could  enforce  that 
promise  in  an  action  at  law  established  a  legal  principle  that  the  courts 
of  England  have  never  recognized. 

The  plaintiff  in  the  case  at  bar,  if  driven  to  it,  might  doubtless 
derive  aid  and  comfort  from  the  doctrine  laid  down  in  Lawrence  v.  Foyi 
by  parity  of  reasoning,  but  we  think  her  case  rests  upon  very  different 
principles. 

The  first  case  to  be  considered  is  Diitton  v.  Poole,  [1677]  i  Ventris. 
318-332,  decided  in  England  in  the  reign  of  Charles  11.^ 

The  plaintiff  declared  in  assumpsit  that  his  wife's  father,  being  seized 
of  certain  lands  now  descended  to  the  defendant,  and  being  about  to  cut 
a  thousand  pounds  worth  of  timber  to  raise  a  portion  for  his  daughter, 
the  defendant  promised  to  the  father,  in  consideration  that  he  would 
forbear  to  fell  the  timber,  that  he  would  pay  the  daughter  one  thousand 
pounds. 

After  the  verdict  for  the  plaintiff"  on  non-assumpsit,  it  was  moved  in 
arrest  of  judgment  that  the  father  ought  to  have  brought  the  action  and 
not  the  husband  and  wife.  The  court  said:  "It  might  have  been 
another  case  if  the  money  had  been  to  have  been  paid  to  the  stranger, 
but  there  is  such  a  nearness  of  relation  between  the  father  and  the  child, 
and  'tis  a  kind  of  debt  to  the  child  to  be  provided  for,  that  the  plaintiff' 
is  plainly  concerned. " 

The  judgment  was  affirmed  in  the  Exchequer.     2  Lev.  212;  Raym.  302. 

In  one  of  the  opinions  of  the  Appellate  Division  in  the  case  at  bar,  it 
is  stated  that  Button  v.  Poole  has  been  repudiated  in  Tweddle  v.  Atkinson 
[1861],  loi  Eng.  C.  L.  R.  393.^  A  careful  examination  of  this  latter 
case  shows  that  Justice  Bl.vckburn,  w^hile  attacking  Diitton  v.  Poole, 
says  :    ' '  We  can  not  overrule  a  decision  of  the  Exchequer  Chamber. ' ' 

1  See  Langdell's  Cases  on  Contracts,  170,  for  a  report  of  this  case. 

2  See  Ivangdell's  Cases  on  Contracts,  174.  for  the  report  of  this  case. 


366  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

lyORD  Mansfield  said  of  Djdtoti  v.  Poole,  a  hundred  years  later,  that 
it  was  diflScult  to  conceive  how  a  doubt  could  have  been  entertained 
about  the  case.  Marty?t  v.  Hind,  Cowp.  443  ;  Doug.  142.  It  has  also 
been  repeatedly  followed  in  this  state. 

The  learned  counsel  for  the  defendant,  in  an  able  and  comprehensive 
brief  complains  that  Button  v.  Poole  has,  on  several  occasions,  been 
cited  to  sustain  the  broad  doctrine  that  a  stranger  to  the  consideration 
and  to  the  promise  may  maintain  an  action  on  a  contract.  He  points 
out  that  such  an  alleged  erroneous  citation  appears  in  Schemerhorn  v. 
Vanderheyden,  i  Johns.  139,  and  that  it  has  led  to  confusion  in  subse- 
quent cases.  We  are  not  concerned  at  this  time  whether  this  is  a  just 
criticism  or  not,  as  there  can  be  no  doubt  that  Duttofi  v.  Poole  rests 
upon  the  nearness  of  the  relation  between  father  and  child,  and  to  this 
extent  is  undoubted  authority. 

In  Shepardv.  Shcpard,  7  Johns.  Ch.  57,  Dutto7i  v.  Pi^^?/^  is  approved 
and  followed,  and  Chancellor  Kent  also  recognizes  the  principle  con- 
tended for  in  this  case,  that  the  consideration  of  natural  aflfection,  and 
to  make  sure  the  maintenance  of  a  wife  in  case  she  survived  her  hus- 
band, is  "  ver}^  meritorious.  ■' 

There  were  two  principal  points  decided  by  Chancellor  Kent  in  this 
case.  The  first  being  that  although  a  deed  from  the  husband  directly 
to  his  wife  is  void  in  law,  yet,  where  the  conveyance  of  the  husband  is 
for  the  purpose  of  making  a  suitable  provision  for  the  wife  "  in  case 
she  should  survnve  him, "  equity  will  lend  its  aid  to  enforce  its  pro- 
visions. The  second  point  held  that  where  a  husband  conveyed  land 
to  his  son,  for  a  nominal  sum,  on  his  covenanting  to  pay  an  annuity  to 
his  mother  during  her  widowhood,  that  the  wife  could  sue  on  this  cove- 
nant so  made  for  her  benefit,  and  that  an  attempted  release  of  the  son 
from  the  covenant  by  the  husband,  in  his  lifetime,  was  fraudulent  and 
void.  The  learned  chancellor  said  :  "  But  if  the  deed  of  1808  was  out 
of  the  question,  I  should  then  have  no  difiiculty  in  declaring  that  the 
defendant  was  bound  to  pay  her  the  stipulated   annuity,  or  the  gross 

sum  of  four  hundred  dollars  in  lieu  of  it,  on  her  releasing,  "  etc 

' '  The  relationship  between  husband  and  wife  was  sufiicient  to  entitle 
the  plaintiff  to  her  action  upon  the  covenant  to  her  husband,  and  which 
was  made  for  her  benefit.  The  consideration  enured  from  the  husband, 
and  arose  from  the  obligation  of  that  relation,"  etc.  The  chancellor 
then  comments  approvingl}-  and  at  length  upon  Dtitton  v.  Poole,  points 
out  the  subsequent  commendation  of  it  by  Lord  Mansfield,  and  con- 
cludes by  saying  :  "  The  same  doctrine  appears  in  the  more  earh-  case 
of  Starkey  v.  Mill  (Sty.  296),  and  it  has  had  the  sanction  also  of  Mr. 
Justice  BuLLER  in  Marchingto7i  v.  Vernon  (i  Bos.  &  Pul.  loi,  in  notis), 
but  it  is  quite  unnecessary  to  dwell  longer  on  this  second  point.  " 

While  the  chancellor  allowed  relief  to  the  plaintiff  by  enforcing  her 
deed  in  equity,  j^et  he  distinctly  held  that  she  had  the  additional  rem- 
edy of  an  action  on  the  covenant  between  her  husband  and  the  son  if 


BUCHANAN  V.  TILDEN.  3«)7 

there  were  no  deed,  by  reason  of  the  relations  and  obligations  of  hus- 
band and  wife,  resting  his  decision  squarely  on  the  case  of  Button  v. 
Poole. 

With  this  case  approved  by  Lord  Mansfield,  Justice  Buller,  and 
Chancellor  Kent  and  followed  in  this  state,  it  is  not  of  controlling 
importance  that  the  doctrine  of  this  and  other  early  cases  is  said  to  be 
questioned  in  England  at  the  present  day. 

In  a  jurisdiction  where  the  doctrine  of  Lawrence  v.  Fox  is  the  settled 
law,  there  is  no  difficulty  in  sustaining  both  in  law  and  equity  the  kin- 
dred principle  announced  in  Dnttoii  v.  Poole. 

It  is  quite  impossible  to  follow  the  learned  counsel  on  both  sides  of 
this  case  in  the  exceedingly  interesting  and  exhaustive  discussion  of 
the  questions  involved,  as  the  limits  of  an  ordinary'  opinion  forbid  it. 

We  shall  content  ourselves  with  the  citation  of  but  one  more  case. 
In  Todd  V.  Weber,  95  N  Y.  181,  this  court  held  that  the  relation  of 
parent  and  child,  even  between  a  father  and  his  illegitimate  daughter, 
was  a  sufiicient  consideration  for  a  contract  made  by  him  with  the  rela- 
tives of  his  unfortunate  child  to  pay  for  her  support  and  maintenance, 
and  that  she  could  enforce  it  by  action.  The  learned  judge  writing  for 
the  court  in  that  case,  in  an  opinion  that  does  honor  to  his  heart  as 
well  as  his  intellect,  quotes  with  approval  Dutton  v.  Poole. 

We  see  no  valid  distinction  in  principle  between  this  relation  of  par- 
ent and  child  and  husband  and  wife  as  affording  an  ample  considera- 
tion for  covenants  enuring  to  the  benefit  of  the  child  or  wife. 

The  relation  of  hvisband  and  wife  has  been  twice  recognized  in  this 
state  in  cases  just  cited,  as  a  sufficient  consideration  for  supporting  a 
covenant  in  the  wife's  favor  and  amply  sustaining  the  plaintiff's  cause 
of  action  in  the  case  at  bar. 

This  court  has  recently  held  that  while  the  common  law  rule  that 
husband  and  wife  are  one  has  been  to  some  extent  abrogated  by  special 
legislation,  yet  there  are  situations  where  that  unity  still  exists.^  The 
case  before  us  illustrates  a  situation  where  that  unity  survives  for  the 
purpose  of  aiding  the  wife  to  enforce  a  covenant  for  her  benefit  made  by 
her  husband,  and  which  equity  and  good  conscience  approve.  The 
Appellate  Division  refer  to  Durnhcrr  v.  Rau,  135  N.  Y.  219,  as  "a  case 
while  not  directl}^  in  point  is  in  its  controlling  principles  adverse  to  the 
plaintiff's  right  to  maintain  this  action."  We  think  that  case  has  no 
application  to  the  one  before  us.  The  husband  of  plaintiff  conveyed  to 
the  defendant  certain  premises,  the  latter  covenanting  to  pay  all  incum- 
brances on  the  premises  ' '  by  mortgage  or  otherwise. ' '  The  deed  declared 
that  the  wife  (the  plaintiff)  reserved  her  right  of  dower.  By  the  fore- 
closure of  mortgages  on  the  premises,  existing  at  the  time  of  the  con- 
veyance and  in  which  the  wife  joined,  her  dower  interest  was  extin- 
o-uished.     The  wife  sued  on  the  defendant's  covenant  in  the  deed  to  pay 

1  Citing,  Wetmore  v.  Wetmore,  149  N.  Y.  520,  529;  Bertles  v.  Nunan,  92  N.  Y.  152. 


368  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

all  encumbrances  and  sought  to  recover  the  value  of  her  dower  interest 
cut  off  by  the  foreclosure.  This  court  held  that  the  covenant  was  with 
the  husband  alone,  as  the  wife  was  not  bound  to  pay  the  mortgages, 
and  that  the  joinder  of  the  wife  in  the  mortgages  was  a  voluntary  sur- 
render of  her  right  of  dower  for  the  benefit  of  the  husband,  and  bound 
her  interest  to  the  extent  necessary  to  protect  the  securities.  It  is  per- 
fectly clear  under  this  state  of  facts  that  the  husband  rested  under  no 
duty  to  protect  the  wife's  dower  interest.  There  was  no  legal  or  equit- 
able oblio-ation  which  the  wife  could  lay  hold  of  to  enable  her  to  sue  on 
the  covenant.  The  court  points  out  that  it  is  not  sufficient  that  the 
performance  of  a  covenant  mcy  benefit  a  third  person,  but  it  must  have 
been  entered  into  for  his  benefit. 

The  case  at  bar  is  decided  upon  its  peculiar  facts.  We  do  not  hold 
that  the  mere  relation  of  husband  and  wife  alone  constituted  a  sufficient 
consideration  to  enable  the  plaintiff  to  maintain  this  action.  We  deem 
it  unnecessary  to  decide  that  question  at  this  time.  What  we  do  hold 
is,  that  the  equities  of  the  plaintiff  were  such  that  when  considered  in 
connection  with  the  duty  of  her  husband  to  provide  for  her  future,  and 
vvnth  that  purpose  in  view,  the  money  was  procured  for  the  defendant  to 
institute  and  pursue  the  necessary  litigation  to  secure  the  fund  to  which 
her  equities  related,  all  taken  together,  were  sufficient  to  sustain  the 
plaintiff's  action. 

The  order  of  the  Appellate  Division  granting  a  new  trial  and  the 
judgment  entered  thereon  should  be  reversed  and  the  original  judgment 
in  favor  of  the  plaintiff  and  against  the  defendant  affirmed,  with  costs 
in  all  the  courts. 

Gray,  J.  (dissenting).  I  think  that  the  order  appealed  from  should 
be  affirmed  and  that  any  other  doctrine  than  that  laid  down  by  the 
Appellate  Division  would  be  without  support  in  principle,  or  in  the 
cases.  The  defendant  needed  money,  in  order  to  prosecute  an  action  to 
set  aside  certain  provisions  of  the  will  of  Samuel  J.  Tilden,  deceased. 
He  applied  to  the  plaintiff's  husband  for  that  purpose,  and  the  latter 
procured  Dun  to  advance  the  mone3^  The  agreement  between  the 
defendant  and  the  plaintiff's  husband  was  that,  in  the  event  of  the  suc- 
cess of  the  action,  in  view  of  the  assistance  rendered  by  the  latter,  as  well 
as  b}'  Dun,  the  defendant  would  become  responsible  for  the  payment  to 
the  plaintiff  of  the  sum  of  $50,000.  The  action  was  successful  and  the 
defendant  repaid  the  monej^  loaned.  In  addition,  he  gave  to  the  plain- 
tiff a  sum  of  $8,500;  but  she  has  brought  this  action  to  compel  the 
payment  by  the  defendant  of  the  whole  sum  mentioned  in  the  agree- 
ment. 

The  question  is,  whether  the  plaintiff  had  a  cause  of  action  upon 
the  contract.  It  seems  to  me  that  this  case  is  not  brought  within  that 
class  of  cases,  wherein  a  third  person  is  entitled  to  enforce  a  promise 
which  has  been  made  by  one  person  to  another ;  because  of  the  absence 
of  the  essential  element  that  some  liability  or  duty  must  exist  from  the 


BUCHANAN  V.  TILDEN.  369 

promisee  to  such  third  person  in  connection  therewith.  As  it  was  held 
in  Durnherrv.  Ran,  135  N.  Y.  219,  the  rule  is  that  to  permit  a  third 
party  to  enforce  such  a  promise,  the  promisee  must  have  a  legal  interest 
that  the  covenant  be  performed  in  favor  of  the  party  claiming  perform- 
ance. How  was  that  the  case  here  ?  Could  it  be  because  of  the  general 
obligation  on  the  part  of  the  plaintiff's  husband  to  support  and  main- 
tain her?  That,  of  course,  is  a  well  recognized  obligation  in  the  law; 
but  did  the  contract  in  question  have  that  for  its  object  ?  I  can  not  so 
regard  it.  It  related  solely  to  the  payment  of  a  large  sum  of  money 
contingently  upon  the  success  of  a  certain  litigation,  of  which  the  de- 
fendant was  the  promoter,  and  promised  a  reward  or  compensation  to  the 
part}-  with  whom  made  for  his  aid  in  furnishing  the  needed  moneys. 
It  is  perfectly  clear  that  this  contract  was  not  based  upon  marital  obli- 
gations ;  but  that  it  was  simpl}'  a  mode,  suggested  by  the  husband  and 
adopted  b}-  both  parties,  for  the  payment  by  the  defendant  of  the  con- 
sideration for  his,  the  plaintiff's  husband's,  services  in  the  matter.  It 
does  not  appear  that  the  plaintiff's  cause  of  action  has  any  other  basis 
than  the  mere  fact  of  the  marital  relation.  While  that  relation  imposes 
strong  legal  and  moral  obligations  upon  the  husband,  it  is  difficult  to 
see  that  they  involve  a  liability  on  his  part  to  provide  a  separate  estate 
for  his  wife  and,  yet,  if  there  is  not  that  liability,  what  liability  was 
there  towards  the  plaintiff,  which  furnished  the  element,  required  to 
exist  in  order  that  the  third  person,  the  plaintiff  here,  might  claim  the 
right  to  enforce  the  promise  ?  It  is  not  necessary  that  the  wife  should 
be  privy  to  the  consideration  of  the  promise  ;  but  it  is  necessarj'  that 
the  promisee,  her  husband,  should  owe  some  debt  or  dut}'  to  her,  in 
connection  with  the  promise,  to  enable  her  to  sue  upon  it. 

I  think  that  the  insuperable  legal  objection  to  the  plaintiff's  cause  of 
action  is,  that  the  contract  in  question  was  not  one  which  looked 
towards  the  discharge  of  any  obligation  owing  by  him  to  her  and, 
therefore,  is  not  enforceable  upon  the  doctrine  which  underlies  the  cases 
where,  as  in  the  relation  of  parent  and  child,  the  promisee  owed  a  dut}- 
which  the  contract  was  supposed  to  meet.  I  am  prepared  to  admit,  as 
it  is  argued,  that  we  should  recognize  the  obligation  of  the  husband  to 
svipport  the  wafe  to  be  as  meritorious  as  the  obligation  of  the  parent  to 
support  the  child,  and,  if  this  contract  could  be  regarded  in  that  light, 
I  might  be  prepared  to  extend  to  the  present  case  the  principle  of  the 
cases  referred  to.  But,  as  previously  suggested,  the  relationship 
between  the  parties  here  does  not  help  us  out  in  endeavoring  to  find 
support  for  the  plaintiff's  cause  of  action  ;  for  the  reason  that  the  con- 
tract, which  is  soirght  to  be  enforced,  does  not  bear  upon  the  husband's 
obligation  and  is  not  connected  with  it,  but  simply  provides  for  the 
payment  of  a  sum  of  money  as  a  compensation  for  his  services  in  the 
event  of  success. 

In  view  of  the  more  elaborate  discussion  in  the  opinion  below,  ^ 
think  nothinar  more  need  be  said  and  that  the  order  should  be  affirmed. 


370  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

Haight,  Martin,  and  Vann,   JJ.,  concur  with  Bartlett,  J.,  for 

reversal,     Parker,  Ch.  J.,  and  O'Brien,  J.,  concur  with   Gray,  J., 

for  affirmance. 

Order  reversed,  etc. ' 


PATRICK   SULLIVAN,  as   Administrator  of  Catherine  Sullivan, 
Deceased,  Respondent,  v.  CATHERINE  SULLIVAN,  Appellant. 

Court  op  Appeals  of  New  York,  February  6,   1900. 

[161  A^.    Y.  554.] 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  affirming  a  judgment  in  favor  of  the  plaintiff,  entered  upon  a 
decision  of  the  court  on  trial  at  Special  Term. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinion. 

Burton  S.   Chamberlin,  for  appellant.^ 

Frederick  Collin,  for  respondent.^ 

Werner,  J. — On  the  loth  day  of  October,  1892,  the  plaintiff's  intes- 
tate, Catherine  Sullivan,  deposited  with  the  Chemung  Canal  Bank  the 
sum  of  $2,000,  and  received  therefor  a  certificate  of  deposit  in  the  fol- 
lowing form : 

"  Elmira,  N,  Y.,  October  loth,  1892. 
"$2,000. 

"Catherine  Sullivan  has  deposited  in  this  bank  two  thousand  dollars  payable 
one  day  after  date  to  the  order  of  herself,  or  in  the  case  of  her  death  to  her 
niece,  Catherine  Sullivan,  of  Utica,  upon  the  return  of  this  certificate,  with  in- 
terest at  3  per  cent,  per  annum,  if  held  six  months.     Not  subject  to  check. 

"No.  2663S.  J.  H.  Arnot,  V.  P." 

She  retained  possession  of  this  certificate  until  her  death,  which 
occurred  on  the  8th  day  of  Februar^^  1893,  and  after  her  death  it  was 
found  among  her  papers. 

This  action  was  originally  brought  against  the  individuals  who  com- 
posed the  firm  known  as  the  Chemung  Canal  Bank,  and  was  upon  their 
application  continued  against  the  present  defendant,  who  claims  to  be 

1  In  the  course  of  this  case  before  appellate  tribunals,  twelve  justices  passed  upon  the 
questions  involved.  In  the  Appellate  Division  of  the  Supreme  Court  four  justices  were  for 
reversing  the  judgment  below,  which  was  for  the  plaintiff;  one  justice  was  in  favor  of  af- 
firming it.  In  the  Court  of  Appeals  four  justices  were  for  affirming  this  original  judgment, 
and  reversing  the  Appellate  Division;  three  would  affirm  the  Appellate  Division.  The  in- 
teresting opinion  of  fhe  latter  court  will  be  found  in  5  App.  Div.  354. 

See  also,  Borland  v.  Welch  (1900),  162  N.  Y.  104,  no. — Ed. 

2  Appellant  insisted,  inter  alia,  that  the  certificate  of  deposit  given  by  the  Chemung  Canal 
Bank  to  the  deceased,  Catherine  Sullivan,  was  a  valid  contract  between  them,  made  for  the 
benefit  of  the  niece  mentioned  in  it,  and  that  she  had  the  right  to  enforce  that  contract. 
Buchanan  v.  Tilden,  158  N.  Y.  109;  Dutlon  v.  Poole,  i  Ventris,  318;   Todd  v.  Weber,  95  N.  Y.  181, 

"The  arguments  are  omitted. 


PATRICK  SULLIVAN,   ETC.   :'.   CATHF.RIXH  SULLIVAN.  371 

entitled  to  the  moneys  represented  by  said  certificate.  Upon  the  trial 
oral  evidence  was  adduced  to  show,  and  the  court  found,  that  it  was  the 
intention  of  the  plaintiff's  intestate  to  have  the  said  certificate  of  de- 
posit so  drawn  that  in  case  of  her  death,  without  having  withdrawn  the 
deposit,  it  could  be  drawn  by  the  defendant.  The  trial  court  also  found 
that  "no  attempt  was  made  by  the  plaintiff's  intestate  to  create  a  trust 
to  exist  during  the  life  of  the  said  inte.state.  Until  her  death  the  bank 
was  her  debtor.  "  Defendant's  father,  whose  real  name  was  Brown,  was 
a  nephew  of  the  plaintiff's  intestate,  and  lived  with  her  for  thirty-six 
years,  taking  the  name  of  Sullivan,  and  being  regarded  and  treated  as 
an  adopted  son,  although  no  legal  adoption  was  ever  consummated.  The 
defendant  was  born  in  the  house  of  plaintiff's  intestate,  in  Elniira,  and 
lived  there  for  four  or  five  years  after  her  birth,  at  the  end  of  which 
period  she  removed  with  her  parents  to  the  city  of  Utica.  Plaintiflf's 
intestate,  who  was  childless,  exhibited  and  expressed  on  all  occasions 
great  fondness  for  the  defendant,  and  at  the  time  of  said  deposit  stated 
to  the  teller  of  said  bank  that  "she  wanted  it  fixed  to  herself,  or  in 
case  of  her  death  to  her  niece,  Catherine  Sullivan,  of  Utica  " 

In  asserting  her  claim  to  this  fund  the  defendant  invokes  several  dis- 
tinct principles  of  law,  the  first  of  which  is  that  the  deposit  of  this 
money  and  the  issuance  of  this  certificate  constituted  a  valid  contract 
between  plaintiff's  intestate  and  the  bank  for  the  benefit  of  the  defend- 
ant. Buchanan  v.  Tilden,  158  N.  Y.  109;  Button  v.  Poole,  i  Ventris, 
318,  and  Todd  v.  Weber,  95  N.  Y.  181,  are  cited  in  support  of  this  con- 
tention. As  I  read  these  cases  they  have  no  application  to  the  case  at 
bar,  for  in  each  of  them  there  was  a  valid  contract  founded  upon  a  suffi- 
cient consideration  for  the  benefit  of  a  third  person,  which  the  latter 
could  enforce.  Here  there  was  no  contract  to  which  the  defendant  was 
a  privy,  nor  can  it  be  said  that  the  relations  of  the  plaintiflf's  intestate 
and  the  defendant  are  such  as  to  furnish  any  consideration  for  such  a 
contract,  if  one  had  existed.^ 

The  judgment  of  the  court  below  should  be  afl&rmed,  without  costs. 

Parker,  Ch.  J.,  Gray,  Bartlett,  Martin,  Vann,  and  Cullen,  JJ., 

concur. 

Judgment  affirmed. 

1  Part  of  the  opinion,  on  another  point,  is  omitted. 


372  IN  WHOSE  name;  the  action  should  be  brought. 


EMBLER  V.  HARTFORD  STEAM  BOILER  INSURANCE 
COMPANY. 

Court  of  Appeals  oe  New  York,  March  21,  1899. 

liSSN.   K  431.] 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court,  upon  an  order  affirming  a  judgment  in  favor  of  the  defendants, 
entered  upon  a  decision  of  the  court  dismissing  the  complaint  upon  the 
merits  on  trial  at  Special  Term. 

The  nature  of  the  action  and  the  facts,  as  far  as  material,  are  .stated 
in  the  opinion. 

E.   W.  Douglas.  J.  Newton  Fiero,  and  Fraficis  A.  Smith,  for  appellant. 

Lewis  E.  Griffith,  for  respondents.^ 

Gray,  J. — The  policy  of  insurance,  which  was  the  subject  of  this 
action,  was  issued  to  the  Ticonderoga  Pulp  &  Paper  Company  in 
October,  1891,  and  it  indemnified  and  insured,  among  other  things, 
against  loss  or  damage  to  property  of  every  kind  resulting  from  an 
explosion  or  rupture  of  steam  boilers  ; 

"  also  against  loss  of  human  life  or  injury  to  person,  whether  to  the  assured,  to 
employees,  or  to  any  other  person  or  persons,  caused  by  such  explosion  or  rup- 
ture, payable  to  the  assured  for  the  benefit  of  the  injured  person  or  persons,  or 
their  legal  representatives  in  case  of  death,  and  not  contingent  upon  the  legal 
liability  of  the  assured.  " 

The  sum  of  insurance  stated  in  the  polic}-  was  f  59, 000,  and  the  amount 
of  an 3'  recovery  under  the  clause  quoted  was  limited  to  the  sum  of  $5,000. 

In  December,  1892,  Provencha,  who  was  employed  by  the  pulp  com- 
pany in  the  capacity  of  fireman,  was  injured  as  the  result  of  an  explo- 
sion of  one  of  the  boilers  and  died  from  his  injuries.  His  widow,  as 
his  administratrix,  brought  an  action  against  the  pulp  company,  to 
recover  damages  by  reason  of  its  alleged  negligence  in  causing  the  death 
of  her  intestate,  and,  prior  to  the  trial  of  the  issues  therein  raised,  the 
case  was  settled  by  the  payment  of  the  sum  of  $1,500.  Subsequently, 
Provencha's  administratrix  assigned  to  the  plaintiff  in  this  action  all 
her  rights  and  interests  in  and  to  the  policy  of  insurance  in  qitestion  ; 
whereupon  this  action  was  brought.  The  plaintiff  seeks  to  enforce  the 
contract  of  insurance  to  the  extent  of  the  $5,000,  provided  for  in  the 
clause  above  mentioned. 

It  is  contended  on  the  part  of  the  plaintiff  that  this  policy  provides 
for  two  kinds  of  insurance :  one  of  indemnity  to  the  pulp  company, 
against  loss  or  damage  to  property,  and  one  against  loss  of  human  life, 
or  injury  to  persons  ;  and  that  the  promise  of  the  insurer  in  the  latter 

1  The  arguments  are  omitted. 


EMKLER  V.   IIARTFOKD  STKAM  BOILER  INSURANCE  COMPANY.        ^,73 

respect,  under  the  special  clause  which  I  have  mentioned,  was  made 
absolutely  for  the  benefit  of  Provencha,  or  his  legal  representatives  in 
case  of  death,  and  not  merely  to  indemnify  the  pulp  company  for  any 
loss  which  it  might  sustain  from,  or  by  reason  of,  such  death.  It  is 
argued  that  the  manifest  intent  of  the  contract  was  to  compensate,  to  a 
limited  extent,  those  sustaining  a  loss  from  death,  regardless  of  any 
relation  existing  between  the  assured  and  the  person  killed,  and  regard- 
less of  any  interest  which  the  assured  might  have  in  the  person 
killed. 

The  polic}'  of  insurance  was  issued  prior  to  the  passage  of  the  act  of 
1S92,  (Chap.  690,  Sec.  55,)  which  expressly  authorizes  an  employer  to 
take  out  accident  insurance  covering  his  employees  collectively,  for  the 
benefit  of  such  as  may  be  injured,  and,  therefore,  is  not  affected  by  that 
law.  The  action  must  stand  or  fall  upon  the  determination  of  the  ques- 
tion whether  the  contract  of  insurance  gave  any  rights  to  Provencha, 
or  to  his  legal  representatives,  to  enforce  it  against  the  insurer  for  his, 
or  their,  benefit. 

Certainl3^  Provencha  was  not  a  party  to  the  contract  of  insurance  and 
it  does  not  appear  from  the  record,  even,  that  he  was  an  employee  of 
the  pulp  company  at  the  time  the  contract  was  made.  The  stipulated 
fact  is,  and  it  is  all  the  evidence  that  we  have  on  the  subject,  that 
Provencha  on  and  prior  to  the  day  when  the  accident  occurred,  was  in 
the  employment  of  the  Company.  In  the  face  of  such  a  stipulation  it 
is  to  be  inferred,  if  not  presumed,  that  Provencha  was  not  an  employee 
when  the  policy  was  issued.  But,  perhaps,  that  fact  alone  may  not 
have  a  decisive  bearing  upon  the  question,  if  the  theory  of  the  plaintiff 
be  tenable,  that  the  promise  of  the  insurer  was  made  for  the  benefit  of 
those  who,  being  employees,  might  sustain  injury.  The  difficulty  in 
the  way  of  maintaining  the  action  upon  any  such  theory  is  radical,  in 
that  Provencha  was  neither  privy  to  the  contract  nor  its  consideration. 
It  is  not  necessary  to  define  precisely  what  was  intended  between  the 
parties  by  the  insertion  of  the  clause  in  question.  It  may  be  that  it 
was  intended  purely  as  an  indemnity  to  the  assured  against  pecuniary 
loss  resulting  to  it  from  an  injury  occurring  to  an  employee;  whether 
that  pecuniary  loss  were  established  as  a  legal  liability  of  the  assured, 
or  w^hether  it  were  a  voluntary  payment  made  to  compensate  the 
injured  person  on  the  part  of  the  company. 

Assuming  that  it  intended  an  insurance  of  the  employees  through 
their  employer,  the  case  is  not  helped  very  much  ;  because  no  right  of 
action  was  given  to  the  employee,  nor  could  any  cause  of  action  exist 
at  common  law.  It  is,  of  course,  competent  for  the  legislature  to  alter  the 
rules  of  the  common  law  and  to  create  a  cause  of  action  where  none  existed 
previously  and  that  is  what  was  attempted  to  be  done  by  the  legislature  in 
the  legislation  of  1892,  to  which  I  have  referred.  But  under  the  rules 
of  the  common  law,  giving  a  right  of  action  upon  the  engagement  or 
promise  of  a  party,  the  cause  of  action  is  vested  in  the  person  with  whom. 


374  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

or  to  whom,  the  engagement  or  the  promise  is  made.  An  exception  is 
allowed  in  the  case  of  a  third  party  for  whose  benefit  a  contract  is  made; 
when  he  may  be  allowed  to  bring  an  action  in  his  own  name.  In  such 
a  case,  however,  it  must  appear  that,  when  the  contract  was  made,  some 
obligation,  or  dutj^ ,  was  owing  from  the  promisee  in  the  contract  to  the 
party  to  be  benefited.  It  is  not  sufiicient  that  the  performance  of  the 
contract  may  benefit  a  third  person.  It  must  have  been  entered  into 
for  his  benefit  and  the  promisee  must  have  a  legal  interest  that  it  be 
performed  in  favor  of  the  third  person.  Vrooman  v.  Turner,  69  N.  Y. 
280;  Durnherrv.  Rati,  135  N.  Y.  219,  It  was  said  by  Judge  Rapallo  in 
Gamsey  v.  Rogers,  47  N.  Y.  233,  when  speaking  of  the  doctrine  of  i-aze/- 
rence  v.  Fox,  20  N.  Y.  268,  that  he  did  not  understand  that  that  case 
went  so  far  as  to  hold  that  every  promise  made  by  one  person  to  another, 
from  the  performance  of  which  a  third  person  would  derive  a  benefit,  gives 
a  right  of  action  to  such  third  party  ;  he  being  privy  neither  to  the 
contract  nor  to  the  consideration.  Now  what  was  there  in  the  relation 
which  Provencha  sustained  to  the  pulp  company,  which  gave  him  a 
legal  claim  to  the  benefit  of  the  promise  of  the  insurer  in  this  policy  ? 
If  he  had  no  legal  claim,  he  could  have  no  equitable  claim  ;  because  a 
court  of  equity  will  not  enforce  a  demand  which  is  in  contravention  of 
rules  of  law.  We  do  not  know  that  he  was  an  employee  of  the  pulp 
company,  at  the  time  this  contract  of  insurance  was  made.  The  only 
parties  to  the  contract  are  the  pulp  company  and  the  insurance  com- 
pany. It  can  not  be  supposed  that  there  was  an  intention  on  the  part 
of  the  pulp  company  to  secure  some  benefit  to  Provencha  ;  for  he  was 
not  in  its  employment  and  he  could  in  no  respect  be  deemed  in  privity 
with  the  pulp  company'  with  respect  to  the  contract.  There  was  no 
relation  of  debtor  and  creditor ;  nor  any  obligation  or  duty  owing  from 
the  pulp  company  to  Provencha,  aflfecting  or  concerning  this  contract. 
The  only  obligation  or  duty,  as  between  them,  consisted  in  such  as 
grew  out  of  the  relation  of  employer  and  employee  ;  for  any  breach  of 
which  the  law  gave  a  right  of  action  and  which  was,  in  fact,  availed 
of  by  Provencha 's  administratrix. 

Nor  can  it  be  said  that  the  pulp  company  had  any  legal  interest  that 
the  promise  of  the  insurer  should  be  performed  in  favor  of  Provencha; 
for,  assuming  that  a  legal  interest  could  have  arisen  upon  the  happen- 
ing of  the  injury,  it  certainly  ceased  upon  the  satisfaction  by  the  pulp 
company  of  the  claim  made  in  the  action  brought  by  his  administratrix. 
I  think  it  is  impossible  for  us  to  hold,  under  the  circumstances,  that 
there  was  such  a  relation  between  Provencha  and  the  pulp  company,  or 
any  such  privity  on  his  part  to  this  contract  of  insurance,  as  conferred 
upon  him,  or  his  legal  representatives,  a  right  of  action  upon  the  policy 
of  insurance  and,  for  that  reason,  the  judgment  appealed  from  should 
be  affirmed,  with  costs. 

Parker,    Ch.J.,    Haight,    Martin,     and   Vann,    J  J.,    concur    for 
affirmance  upon  the  ground  that  the  insurance  policy  in  question  was 


EMHLEK  :'.   IIARTI'UUD  STEAM  BOILER  INSURANCE  COMPANY.       375 

at  most  intended  as  a  pecuniary  indemnity  to  the  legal  representatives 
of  the  deceased  eniploj-ee  for  the  loss  sustained  bj-  them  in  consequence 
of  his  death,  and  that  but  one  recovery  is  permitted,  whether  the  death 
Avas  caused  through  negligence  or  unavoidal^le  accident.  A  claim 
having  been  presented  by  the  legal  representatives  against  the  assured, 
based  upon  negligence,  and  that  claim  having  been  recognized  and 
paid,  no  further  right  of  action  could  exist  under  the  polic}-. 

Gray,  J.,  reads  for  affirmance;  all  concur  (Parker,  Ch.  J.,  Haight, 
Martin,  and  Vann,  J  J.,  in  result  on  memorandum  filed). 

Judgment  and  order  affirmed,  with  costs. 


376 


IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


C.       The  real  parly  in  itilcrcst  ivhcn  a  chose  hi  aclion  is  assigned. 

NOTE. 

Whether  a  chose  in  action  was  assignable,  and  if  assignable  whether 
it  could  be  enforced  by  the  assignee  in  his  own  name,  were  questions 
which  received  very  different  answers,  under  the  older  procedure, 
according  as  they  arose  in  an  action  at  law  or  in  a  suit  in  equity.  The 
ancient  doctrine  of  the  law  courts,  that  no  chose  in  action  could  be 
assigned,  was  indeed  greatly  relaxed  as  time  went  on,  so  that  many 
legal  choses  in  action  became  assignable  in  effect ;  but  at  its  farthest 
the  reach  of  the  doctrine  at  law  on  this  point  fell  short  of  that  which 
was  developed  in  equit}-. 

For  instance,  courts  of  law  would  not  recognize  the  assignment  of  a 
part  of  an  entire  debt,  without  the  assent  of  the  debtor  ;  but  such  an 
assignment  was  recognized  and  sustained  in  courts  of  equity.^  So 
also  ' '  to  make  an  assignment  valid  at  law,  the  thing  which  is  the  sub- 
ject of  it  must  have  an  actual  or  potential  existence  at  the  time  of  the 
grantor  assignment ;  but  courts  of  equity  will  support  assignments 
not  only  of  choses  in  action  and  of  contingent  interests  and  expectan- 
cies but  also  of  things  which  have  no  present  actual  or  potential  exist- 
ence but  rest  in  mere  possibility — not  indeed  as  a  present  positive 
transfer  operative  in  prcseuti,  for  that  can  only  be  of  a  thing  in  esse, 
but  as  a  present  contract,  to  take  effect  and  attach  as  soon  as  the  thing 
comes  in  esse. '  '- 

Moreover,  even  when  the  courts  of  law  recognized  the  assignment  of 
a  chose  in  action,  they  as  a  rule  recognized  it  only  indirectly  ;  the 
assignee  was  required  to  sue  in  the  name  of  theassignor.  save  where 
the  law  merchant  or  some  special  statute  had  established  an  exception.'' 
Equity,  on  the  ctihf^r  h.ind.  required  that  the  assignee  of  an  assignable 
chose  in  action  should  sue  in   his  9wn  name.* 

VVitia  the  amalgamation  of  law  and  equity,  under  the  one  form  of 
civil  action,  it  became  necessar}-  to  adopt  a  principle  that  would  remove 

were  not  explicit  either  on  the  assignability  of  choses  in  action  or  on 
the  right  of  an  assignee  always  to  sue  in  his  own  name.  The  question 
of  assignability  was  left  to  inference  from  provisions  in  the  substantive 

1  See  Mandeville  v.  Welch  (1S20),  5  Wheat.  277.  2S6.  James  v.  City  of  \ewton  (18S6),  142 
Mass.  366,  371.     Compare  Grain  v.  Aldrich  (1869),  38  Cal.  514,  521,  given  in  text,  ante.  p.  43. 

2  Story's  Equity  Jurisprudence,  \  1040. 

•"5  These  special  statutory  exceptions  had  grown  to  a  considerable  number  before  the  en- 
actment of  the  New  York  Code  of  1848;  compare  Chitty's  Pleading,  loth  American  edition 
(1847),  15,  16. 

■4  "If  at  this  moment,  any  member  of  Ihe  legislature,  to  whom  a  bond  and  mortgage  had 
been  assigned,  were  to  go  into  the  supreme  court  and  i^ue  upon  the  bond,  he  would  have  to 
sue  in  the  name  of  the  person  who  made  the  assignment,  however  much  distrusted,  or  lose 
his  case;  but  if  he  were  to  sue  on  the  mortgage,  for  the  foreclosure,  he  would  have  to  sue  in 
his  own  name,  or  he  would  not  be  heard.  And  yet  it  is  the  same  judge  who  sits  in  the  two- 
cases."     First  Report,  New  York  Commissioners,  (1848),  p.  124. 


Tin-:  ui:ai.  party  in  ixtivrp:st.  377 

law,  largel}'^  to  its  ])rovisions  respecting  the  survivability  of  choses  in 
action.     The  right  of  the  assignee  to  sue  in  his  own  name  was  left  to 
inference  from  the  general  provision  that  every  civil  action  must  be 
brought  in  the  name  of  the  real  party  in  interest,  except  when  other- 
wise specially  provided.     Is  the  assignee  of  a  chose  in  action   always 
the  real  part)''  in  interest,  within  the  meaning  of  the  codes,   whenever! 
his  right  to  sue  would  have  been  recognized  at  law  (as  in  the  case  of  the/ 
assignment  of  a  negotiable  instrument)  or  in  equity  ?     Is  the  assignoi 
of  a  chose  in  action  ever  the  real  party  in  interest,  especially  when  he  ha^       "1 
retained,  whollj^  or  in  part,  the  beneficial  interest  in  the  thing  assigned  ? ' 

The  cases  on  the  questions  thus  arising  will  be  arranged   under  the    ^VVf 
following  heads  :  ^^ 

I.  What  choses  in  action  are  assignable, 

r.     Among  rights  in  contract. 
2.     Among  rights  in  tort. 

II.  Nature  of  the  objection  that  one  suing  on  an  assigned  chose  in 
action  is  not  the  real  party  in  interest. 

III.  The  real  party  in  interest  when  the  assignment  of  the  chose  in 
action  is  absolute. 

IV.  The  real  party  in  interest  when  the  assignment  of  the  chose  in 
action  is  subject  to  a  condition,  expressed  on  the  face  of  the  assign- 
ment or  in  a  collateral  agreement. 

1  The  provision  of  the  English  code,  while  more  explicit  on  this  point  than  the  American 
codes,  has  apparently  a  less  extensive  scope.  "There  being  ihis  conflict  between  law  and 
equity,  a  provision,  curiously  limited,  was  inserted  in  the  Judicature  Act  of  1873,  which  did 
not  wholly  supersede  the  common  law,  nor  establish  the  equitable  procedure,  but  which 
created  a  (eriium  quid: 

"  Sec.  25,  subs.  6. — 'Any  absolute  assignment,  by  writing  under  the  hand  of  the  assignor 
(not  purporting  to  be  by  way  of  charge  only),  of  anj-  debt  or  other  legal  chose  in  action,  of 
which  express  notice  in  writing  shall  have  been  given  to  the  debtor,  trustee  or  other  person 
from  whom  the  assignor  would  have  been  entitled  to  receive  or  claim  such  debt  or  chose  in 
action,  shall  be,  and  be  deemed  to  have  been,  effectual  in  law  (subject  to  all  equities  which 
would  have  been  entitled  to  priority  over  the  right  (  "  the  assignee,  if  this  act  had  not  passed) , 
to  pass  and  transfer  the  legal  right  to  such  debt  or  chose  in  action  from  the  date  of  such 
notice,  and  all  legal  and  other  remedies  for  the  same,  and  the  power  to  give  a  good  discharge 
for  the  same,  without  the  concurrence  of  the  assignor;  provided  always,  that  if  the  debtor, 
trustee,  or  other  person  liable  in  respect  of  such  debt,  or  chose  in  action,  shall  have  had 
notice  that  such  assignment  is  disputed  by  the  assignor  or  any  one  claiming  under  him,  or 
of  any  other  opposing  or  conflicting  claims  to  such  debt  or  chose  in  action,  he  shall  be  en- 
titled, if  he  think  fit,  to  call  upon  the  several  persons  making  claim  thereto  to  interplead 
concerning  the  same,  or  he  maj-,  if  he  think  fit,  pay  the  same  into  the  High  Court  of  Justice, 
under  and  in  conformity  with  the  provisions  of  the  Acts  for  the  relief  of  trustees.' 

"This  section  ....  makes  nothing  an  assignment  which  was  not  an  assignment  be- 
fore (Schroeder  v.  The  Central  Bank,  1876,  24  W.  R.  710;  34  I,.  T.  735).  On  the  other  hand 
many  an  assignment  which  was  valid  in  equity  before  the  Judicature  Act  is  not  within  the 
scope  of  this  section,  and  is  therefore  still  invalid  in  law  and  can  only  be  enforced  in  the 
manner  usual  in  courts  of  equity  before  the  Act,  /.  e.,  the  assignor  must  still  be  joined,  either 
asa  plaintiff  or  a  defendant  (see  Turquand  v.  Fearon,  1879,4(2.  B.D.280).  And  in  cases  which 
do  fall  within  the  section,  all  former  equities  remain  unaffected;  the  assignee  has  the  benefit 
of  a  new  procedure  at  la'w;  but  none  of  the  rights  of  the  debtor  or  of  the  assignor  are  re- 
stricted or  destroyed  (Hudson  v.  Fernyhough,  1889,  61  I,.  T.  722;  and  see  the  judgment  of  A. 
I,.  Smith,  J.,  in  Walker  v.  Bradford  Old  Bank,  1884,  12  Q.  B.  D.  517). 

"  The  distinctions  between  assignments  within  the  section  and  those  outside  it  should  be 
carefully  noted,  so  that  the  plaintiff  may  know  which  procedure  to  adopt."  Mr.  W.  Blake 
Odgers,  in  i  Ency.  Laws  of  England,  354. 


378  IX  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

I.      WHAT   CHOSES   IN  ACTION   ARE   ASSIGNABLE. 
I.     Among  rights  in  contract. 
V  SHARP    V.    EDGAR, 

Superior  Court  of  the  City  of  New  York,  December  15,   1849. 

[3  Sandf.  379.] 

This  was  an  action  brought  after  the  code  took  effect,  for  the  recovery 
of  a  payment  due  upon  a  contract,  with  one  Lewis  B.  Griffin,  and 
assigned  by  him  to  Sharp,  the  plaintiff. 

The  complaints  alleged  that  in  August,  1848,  the  defendant  and 
several  others,  owners  of  Pier  No.  11,  North  River,  made  a  contract 
with  Griffin  b}"  which  Griffin  agreed  to  perform  certain  work  in 
sheathing  and  extending  the  pier,  and  furnishing  the  necessary  mate- 
rials, in  accordance  with  certain  plans  and  specifications,  for  the  sum  of 
$8670  ;  that  the  contract  provided  for  payments  from  time  to  time,  upon 
the  production  of  the  superintendent's  certificates,  each  of  the  parties  to 
be  liable  only  for  the  payment  of  his  proportion  of  the  sum  agreed  to  be 
paid,  according  to  his  interest  in  the  pier  ;  that  on  September  4,  1848, 
Griffin  dulj-'  assigned  to  the  plaintiff,  by  an  instrument  under  his  hand 
and  seal,  all  payments  due,  or  to  become  due,  upon  the  contract,  and 
that  notice  of  the  assignment  was  thereupon  given  to  the  defendant ; 
that  Griffin  proceeded,  and  complied  with  the  contract  on  his  part,  and 
performed  the  work  stipulated  for.  The  complaint  further  alleged  that 
the  superintendent's  certificate  was  given  December  12,  1848,  by  which 
the  second  payment  became  due,  and  that  the  proportion  due  from  the 
defendant,  in  respect  to  his  interest  in  the  pier,  was  $359.70,  which  had 
been  demanded  and  was  refused. 

The  answer  admitted  the  making  of  the  contract,  and  alleged  that  a 
paper, "purporting  to  be  an  assignment  made  by  Griffin,  was  shown  to 
the  defendant ;  that  whether  it  was  a  valid  assignment  or  not,  or 
whether  an  assignment  of  the  whole  or  part  of  the  payment,  the 
defendant  was  ignorant ;  that  he  did  not  recognize  the  paper  as  a  notice 
binding  on  him  ;  that  when  the  first  payment  upon  the  contract  became 
due,  the  defendant  deposited  his  proportion  in  the  hands  of  the 
superintendent,  to  be  paid  when  called  for ;  that  the  same  was  paid 
upon  the  order  of  Griffin,  the  order  being  made  payable  to  plaintiff; 
that  the  second  payment  was  paid  by  the  superintendent  to  Griffin  in 
person,  upon  his  request,  and  on  the  production  of  the  proper  certificate, 
which  payment,  it  was  insisted,  was  valid  and  legal,  and  a  bar  to  the 
claim  of  the  plaintiff. 

The  cause  came  on  for  trial  before  Vanderpoel,  J.  After  proof  of 
the  contract,  the  plaintiff  read  in  evidence  the  assignment  from  Griffin 
to  the  plaintiff,  duly  acknowledged  and  recorded,  December  28,  1848. 


SHARP  V.  EDGAR.  379 

It  appeared  that  notice  of  the  assignment  to  plaintiff  was  given  to 
the  defendant,  September  25,  1848,  and  that  he  was  notified  not  to 
make  any  more  payments  to  Grifl&n  ;  that  the  defendant  read  the 
assignment,  and  told  the  party  giving  the  notice  that  he  had  better 
see  the  sujjerintendent ;  that  accordingly,  two  or  three  days  after- 
ward, notice  in  like  manner  was  given  to  the  superintendent.  It 
appeared  on  the  part  of  the  defendant,  by  the  testimony  of  the  super- 
intendent, that  he  was  called  on  by  the  plaintiff  for  the  first  payment ; 
that  the  plaintiff  demanded  payment  as  assignee  ;  that  the  witness 
declined  paying  him  without  a  written  order  from  Grifl&n,  which  was 
subsequently  furnished,  dated  November  i,  1848,  made  payable  to  the 
plaintiff;  and  that  the  first  payment  was  made  upon  this  order.  It 
was  also  proved  that  the  third  payment  was  made  in  like  manner,  by 
Griffin's  order,  dated  January  12,  1849;  and  that  in  all  cases  the  cer- 
tificate was  made  out  in  Grifl&n 's  name,  and  given  to  him.  ^m/u^    ^ 

The  court  charged  the  jury  that  the  contract  was  assignable,  and     ^     .     wi 
that  a  compliance  with  the  request  for  an  order  was  not  a  waiver  of  the  j      ^ 
notice  given  to  the  defendant. 

The  jury  found  for  the  plaintiff  for  the  amount  claimed,  on  which  a 
judgment  was  entered,  and  the  defendant  appealed. 

Gerard  W.  Morris,  for  the  defendant. 

D.  D.  Field,  for  the  plaintif^V 

By  the  Court.     Vanderpoel,  J.— The  defendant  resists  the  plaintiflf's 
right  to  recover,  on  the  ground  that  the  contract  was  not  assignable. 

Section  1 1 1  of  the  code  of  procedure  provides,  that  every  action  must 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  and  if  the  cause 
of  action  here  was  assignable,  it  was  competent  for  the  plaintifif  to 
maintain  the  action.     It  is  a  general  rule,  that  all  choses  in  action  may       *  ^ 
be  assigned  in  equity,  and  the  assignee  has  an   equitable  right,  which     C/        ,y* 
he  may  enforce  in  the  name  of  the  a.ssignor,     Bac.  Abr.,  Title  ''Assign-  ,    r^filr 
merit'''  A  ;    Wheeler  v.   Wheeler,  9  Cow.  34  ;  Eastman  v.  Wright,  6  Pick.  I 
316.     The  provision  of  the  code  renders  the  interA'ention  of  a  court  of/ 
equity  now  unnecessary,  as  the  assignee,  who  is  the  party    in   interest, 
may  bring  a  suit  directly  in  his  own  name.  a 

The  defendant  contends  that  this  is  a  personal  contract,   depending     tiS^A     • 
upon  the  skill,  honesty,  and  integrity  of  the  one  party,  and  the  respon-  ^  ^^ 

sibility  of  the  other,  and  therefore  can  not  be  assigned.     If  there  be     ^      ,  A. 
any   force  in  this  position  as   an  abstract  proposition,    an    abundant        \/Nyr 
answer  to  it  here  is,  that  nothing  is  assignedbut  the /'«>'W2^«/.y  on  the  con-       w(' 
tract.     These  payments,  of  course,  must  be  earned  by  GriflSn,   before         '^^    ^ 
any  right  of  action  can  accrue  in  his  favor,  or  in  favor  of  the  plaintiff.  iA( 

Grifl&n  is  not,  by  virtue  of  the  assignment,  exonerated  and  discharged    j         ^ 
from  the  burthen  imposed  upon  him  by  the  contract.     He  must  perform 
the  work,  according  to  the  contract,  before  any  liability  can   be  raised  • 

1  The  arguments  are  omitted. 


.^^: 


380 


IN  WHOSE  NAME  THE  ACTION  SHOXTLD  BE  BROrCHT. 


from  the  defendants  to  any  one.  The  defendants  maintain  unimpaired 
all  their  right  to  the  skill,  honesty,  and  integrity  of  the  assignor,  not- 
withstanding the  assignment.  The  want  of  skill  of  Sharp,  the  plaintiiF, 
is  not  substituted  for  the  skill  of  Griffin,  which  the  defendants  contend 
may,  with  them,  have  been  the  principal  inducement  to  this  contract. 

There  are  contracts  imposing  a  mere  personal  trust  upon  a  party, 
which  are  not  assignable.     The  cases  of  //all  v.  Gardiner,  i  Mass.  172, 

Xdin^  Davis  V.  Coburn,  8  Mass.  299,  exemplify  this  principle.  In  both 
jthese  cases,  it  was  held  that  an  indenture  of  apprenticeship  is  not 
assignable  by  the  master,  because  he  has  a  mere  personal  trust.  So 
where  a  party  by  assignment  does  an  act  which  is  tantamount  to  say- 
ing that  he  will  not  perform  his  part  of  a  contract,  not  yet  executed,  he 
can  not,  by  assigning,  impose  upon  the  other  party  the  obligation  of 
performing  to  the  assignee.  Robson  v.  Dimmmond,  2  Barn.  &  Adol. 
303,  was  a  case  of  this  description,  where.  A.,-  a  coachmaker,  entered 
into  an  agreement  to  furnish   B.   with  a  carriage,  for  the  term  of  five 

,  years,  at  seventy-five  guineas  a  year.  Before  the  expiration  of  the  first 
three  years,  A.  assigned  all  his  interest  in  the  business  and  in  the  con- 
tract in  question  to  C,  and  the  business  was  afterward  carried  on  by 
C.  alone.  The  assignee  brought  an  action  for  the  two  payments,  which, 
according  to  the  terms  of  the  contract,  would  become  due  during  the 
last  two  years  of  its  continuance.  It  was  held  that  the  action  was  not 
maintainable  ;  that  A.,  by  transferring  all  his  interest  in  the  establish- 
ment to  C,  had  become  incapable  of  performing  his  part  of  the  con- 
tract. The  party  with  whom  the  defendant  originally  contracted  hav- 
ing placed  himself  in  a  position  where  he  could  not  perform  his  part  of 
the  contract,  the  defendant  was  justly  held  to  be  discharged.  That  is 
not  like  the  present  case.  Here,  Griffin,  by  assigning  the  payments, 
did  not  disable  himself  from  performing  the  service,  which  was  a  con- 
dition precedent  to  the  defendant's  liability. 

There  is  another  class  of  cases,  in  which  assignments  will  not  be 
upheld,  either  in  equity  or  at  law,  as  being  against  the  principles  of 
public  policy,  i  Story  Eq.  Jur.  §  1040,  d.  p.  395.  An  officer  in  the 
army  will  not  be  allowed_  to  jpledge  or  assign  his  commission  by  way 
of  mortgage,  for  his  commission  is  an  honorary  personal    trust.     In 

j  like  manner,  the  profits  of  a  public  office  would  seem,  upon  a  similar 
ground  of  public  policy,  not  to  be  assignable.  Palmer  v.  Bate,  2  Brod.  & 
Bing,  673  ;  Davis  v.  Duke  of  Marlborough,  i  Swanst.  79.  It  has  been 
questioned  by  some  jurists,  whether  pen  si  on  s_from  _the  government  are 
assignable,  i  Story  Eq.  Jur.  p.  397.  But  in  England  they  are,  under 
certain  circumstances,  held  now  to  be  assignable.  Wills  v.  Foster,  8 
M.  &  W.  149.     Ex  parte  Battine,  4  Barn.  &  Adolp.  690. 

We  do  not  consider  this  case  as  coming  within  the  principles  of  any 
of  the  cases  in  which  contracts  or  choses  in  action  have  been  held  not 
to  be  assignable  ;   and  the  plaintiff'  here  is  entitled  to  recover. 

Motion  for  new  trial  denied. 


HOOKER  V.  EAGLE  BANK  OF  ROCHESTEK.  iiSl 

HOOKKR  .■.   IvAGLK  BANK  OF  ROCHKSTER. 

Court  ok  Aimmcals  ok  Nkw  Yohk,  January,  1S64. 

[30  A^.  r.  83.] 

In  April,  1S54,  the  defendant  owned  a  lot  of  land  in  the  city  cf 
Rochester,  the  buildings  on  which  had  been  destroyed  by  fire.  Defend- 
ant intended  to  erect  on  this  lot  a  new  building,  in  a  part  of  which 
its  banking  house  was  to  be  located.  Kauftman  &  Bissel,  the 
assignors  of  plaintiff's  claim,  were  a  firm  of  architects,  in  Rochester 
at  this  time  ;  and  Bissel  had  entered  into  a  contract  with  the  defendant 
for  the  purchase  of  a  part  of  the  premises  on  which  the  defendant  was 
to  erect  a  new  building,  but  this  agreement  was  rescinded  before  the 
transactions  hereinafter  mentioned.  Kauffman  &  Bissel  prepared  plans 
and  specifications  for  the  new  building,  under  a  contract,  as  is  alleged 
in  the  complaint,  with  the  defendant  to  furnish  the  same  and  super- 
intend the  work,  for  the  sum  of  $1,000.  The  excavation  of  the  cellar 
and  construction  of  a  sewer  on  the  premises  were  let  to  one  Potter, 
who  had  entered  into  a  contract  for  the  work,  and  he  performed 
work  according  to  the  plans  and  specifications  furnished  by  Kauffman  & 
Bissel,  and  was  paid  upon  estimates  made  by  them. 

In  the  spring  of  1855  the  bank  sold  the  premises  to  one  Chappel,  who 
assumed  the  contract  with  Potter,  and  agreed  to  pa}^  a  small  sum  to 
one  Austin,  an  architect,  for  work  dojie  in  reference  to  the  building, 
and  also  to  pay  Kauffman  &  Bissel  a  sum  for  like  services  not  then 
liquidated,  not  exceeding,  however,  1150.  Chappel  dismissed  Kauffman 
&  Bissel,  and  employed  another  architect,  although  they  were,  as  they 
allege,  read}^  and  willing  to  go  on  with  the  work. 

The  complaint  contained  two  causes  of  action  ;  one  on  a  special  con- 
tract to  pay  $1,000  for  the  services  to  be  rendered  by  Kauffman  &  Bissel 
the  other  on  a  quantian  meruit.  The  assignment  to  the  plaintiff  from 
Kauffman  &  Bissel  was  not  in  writing,  and  evidence  of  the  assignment 
was  objected  to  on  that  ground. 

On  the  trial,  evidence  was  given  on  the  part  of  the  plaintiff,  who  was 
assignee  of  the  demand  from  Kauffman  &  Bissel,  tending  to  prove  an 
agreement  by  the  defendant,  through  its  president  and  two  other  officers, 
to  employ  and  pay  Kauffman  &  Bissel  for  preparing  plans,  &c.,  $1,000 ; 
and  on  the  part  of  the  bank,  tending  to  show  that  no  such  agreement 
was  made.  It  was  shown  that  at  the  time  when  Kauffman  &  Bissel 
were  dismissed  one-half  of  the  work  was  done. 

The  defendant  moved  for  a  non-sviit  on  the  grounds  :  ist.  That  no 
cause  of  action  had  been  proved.  2nd.  That  neither  of  the  issues  had 
been  proved.     3rd.  That  the  assignment  to   the  plaintiff  was  not  in 


382  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

writing,  and  therefore  was  invalid.     The  motion  was  denied  and   the 
defendant's  counsel  excepted.     .     .     .^ 

The  jury  found  for  the  plaintiff  $500,  for  which  sum  judgment  was 
rendered,  and  the  same  was  affirmed  at  a  general  term  of  the  supreme 
court.     The  defendant  appealed. 

,  for  the  appellant. 

T.  C.  MontgOJiicry ,  for  the  respondent. 

MuLL'N,  J. — Proof  was  given,  on  the  trial,  tending  to  prove  an  express 
contract  by  the  defendant  to  employ  Kauffman  &  Bissel  as  architects 
to  make  plans,  &c.,  for  the  new  building,  and  to  pay  them  therefor  the 
sum  of  $1,000.  The  jury,  by  finding  for  the  plaintiff  $500  only,  must 
have  found  that  there  was  no  express  promise  to  pay  Kauffman  & 
Bissel  $1,000,  but  they  have  found  an  agreement  to  employ  them; 
that  they,  Kauffman  &  Bissel,  have  performed  services  for  the  defend- 
ant, and  that  such  services  are  reasonably  worth  $500.  It  is  not 
necessary,  in  order  to  charge  a  corporation  for  services  rendered,  that 
the  directors,  at  a  formal  meeting,  should  either  have  formally  author- 
ized or  ratified  the  employment.  For  many  purposes  the  officers  and 
agents  of  the  corporation  may  employ  persons  to  perform  ser\-ices  for 
it,  and  such  employment,  being  within  the  scope  of  the  agent  or  officers' 
dut\'  binds  the  corporation.  In  other  cases,  if  an  officer  employs  a  person 
to  perform  a  service  for  the  corporation,  and  it  is  performed  with 
the  knowledge  of  the  directors  and  the}'  receive  the  benefit  of  such 
service  without  objection,  the  corporation  is  liable  upon  an  implied 
assumpsit.'^ 

There  was  sufficient  evidence  to  authorize  the  verdict.   .   .   . 

The  defendant  moved  for  a  non-suit  on  several  grounds,  all  of  which 
are  disposed  of  by  the  legal  propositions  above  advanced  except  one, 
and  that  is,  that  the  assignment  from  Kauffman  &  Bissel  to  the  plain- 
tiff, being  without  writing,  was  void. 

A  chose  in  action  might  at  law  be  assigned  without  writing,  so  as  to 
enable  the  assignee  to  enforce  the  debt  or  demand  assigned  in  the  name 
of  the  assignor,  if  there  was  a  valuable  consideration  and  the  delivery 
of  the  thing  assigned.'  Such  an  assignment  in  equity,  enabled  the 
assignee  to  sue  in  his  own  name. 

A  book  debt  is  a  chose  in  action  and  assignable;  Dix  v.  Cobb, 
4  Mass.  508  ;  and  may  like  any  other  chose  in  action,  be  assigned  by 
parol.* 

1  Part  of  the  reporter's  statement  is  omitted. 

2  Citing,  Danforth  v.  Schoharie  Turnpike  Co.,  12  Johns.  227;  Dunn  v.  Rector  of  St.  Andrews, 
14  id.  118;  lyong  Island  Railroad  Co.  v.  Marquand,  6  lyCgal  Obs.  160;  Fister  v.  I,aRue,  15  Barb. 
323;  7  Cowen,  540;  9  Paige,  496;  17  N.  Y.  449;  22  Wend.  348;  20  Wend.  91;  4  Cow.  645;  Angel  & 
Ames  on  Corp.,  ?§  7,  8. 

3  Citing,  Ford  v.  Stuart,  19  Johns.  342;  Briggs  v.  Dorr,  19  id.  95;  Prescott  v.  Hall,  17  id.  284. 

4  Citing,  Jones  v.  Witter,  13  Mass.  304;  Briggs  v.  Dorr,  19  Johns.  95;  2  Cases  in  Chancery^ 
7,  37;  Dunn  V.  Sell,  15  Mass.  485. 


WHITMAN  ET  AL  :'.   KEITH  ET  AL.  383 

Under  the  code,  an  assignment  valid  as  an  equitable  assignment  is 
equally  valid  at  law.     (Code,  §  in).' 

All  the  judges  concurring,  Judgment  affirmed:^ 


WHITMAN   ET   AL   v.    KEITH   ET   AL. 

Supreme  Court  of  Ohio,   December  Term,  1868. 

[18  O.  S.  I34-] 

Error  to  the  court  of  common  pleas  of  Cuyahoga  county.  Reserved 
in  the  district  court. 

In  September,  1856,  one  George  A.  Howe  brought  a  civil  action  in 
the  court  of  common  pleas  of  Cuyahoga  county,  against  one  William 
E.  Cornwall,  seeking  to  recover  the  value  of  a  certain  draft  or  bill  of 
exchange  drawn  by  one  Byers,  which,  as  he  averred,  had  been  received 
for  him  by  Cornwall,  while  in  his  employment,  and  which  Cornwall 
had  fraudulently  converted  to  his  own  use. 

Having  made  the  necessary  aflSdavits,  he  procured  an  order  of  attach- 
ment against  Cornwall,  and  garnishee  process  against  the  firm  of 
Whitman,  Standart  &  Co.,  under  which  name  the  plaintiffs  in  error 
were  doing  business  as  bankers. 

This  process  was  served  on  the  firm  by  leaving  a  true  copy  thereof  at 
its  usual  place  of  business,  with  Stephen  H.  Standart,  he  being  in 
charge  of  the  office.     Stephen  H.  Standart  was  not  a  member  of  the 

1  Part  of  the  opinion  is  omitted. 

2  In  Seymour  v.  Aidtman  &  Co.  (1899),  —  Iowa,  ,  80  N.  W.  401,  the  plaintiffs  sued  to 

recover  commissions  alleged  to  be  due  from  defendants  to  Parks  Bros.,  and  orally  assigned 
by  the  latter  to  plaintiff.  Said  the  court,  per  Deemer,  J.:  "It  is  insisted  that  the  verbal 
assignment  of  a  chose  in  action  is  invalid.  Such  was  the  holding  of  this  court  under  the 
provisions  of  section  952  of  the  code  of  1851.  See  Andrews  v.  Brown,  i  Iowa,  154;  Beebe  v. 
Funkhouser,  2  Iowa,  314;  IVilliams  v.  Soutter,  7  Iowa,  435.  And  although  there  has  been  no 
substantial  change  in  the  wording  of  the  statute,  the  later  cases  all  hold  that  a  verbal  assign- 
ment is  good.  Conyngham  v.  Smith,  i5  Iowa,  471;  Moore  v.  Lowrey,  25  Iowa,  336;  BarUiol  v. 
Blakin,  34 Iowa,  452;  MclVilliams  v.  IVebb,  32  Iowa,  577;  Hoffman  v.  Smith,  94  Iowa,  498,  63  N. 
W.  182;  Foster  v.  Trenary,  65  Iowa,  622,  22  N.  W.  898;  Metcalf  v.  Kincaid,  87  Iowa,  443,  54  N. 
W.  867;  Howe  V.  Jones,  57  Iowa,  140,  8  N.  W.  451,  10  N.  W.  299.  And  while  none  of  these  later 
cases  expressly  overruled  the  former  ones,  yet  such  is  their  effect. 

"We  are  asked  to  say,  however,  that  the  earlier  decision  announces  the  correct  rule,  and 
that  a  chose  in  action  can  not  be  assigned  by  parol.  This  we  are  not  prepared  to  do.  The 
great  weight  of  reason  and  authority  favors  the  proposition  that  such  an  assignment  may 
be  by  parol.     See  cases  cited  in  2  Am.  &  Eng.  Enc.  L,aw  (2d.  Ed.),  pp.  1056,  1058." 

AccordaXso,  Tone  v.  Shankland  (1900),  —  Iowa ,  81  N.  W.  789  ;  Roberts  v.  First  National 

Bank  (1899),  —  N.  D.  ,  79  N.  W.  993  ;    Wilt  v.  Hiiffmann  (1899).  —  W.  Va.,  33  S.  E. 

279;  Perkins  V.  Peierson  (1S92),  2  Colo.  App.  242;  Rice  v.  Yakima  Railway  (1892),  4  Wash. 
724;  Cleggv.New  York  Newspaper  Union  (1S93),  72  Hun,  395;  Riker  v.  Curtis  (1896),  39  N. 
Y.  Supp.  340  ;  S.  C,  17  Misc.  134,  137  :  "  No  formality  is  necessary  to  effect  the  transfer  of 
a  chose  in  action.  Any  transaction  between  the  contracting  parties  which  indicated  their 
intention  to  pass  the  beneficial  interest  in  the  right  from  one  to  the  other  is  sufficient  fo. 
that  purpose.  \  debt  or  claim  may  be  assigned  by  parol  as  well  as  by  writing."— /"cr 
McAdam,  J. — Ed. 


384  IN   WHOSH  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

firm  ;  but  Charles  W.  Standart,  one  of  the  partners,  su'bsequently 
appeared  with  an  attorney  retained  by  him  on  behalf  of  the  firm,  before 
a  commissioner  appointed  by  the  court  for  that  purpose,  and  without 
objection  answered  to  the  process  by  submitting  to  an  examination 
touching  the  alleged  property  of  Cornwall  in  possession  of  the  firm, 
and  the  alleged  indebtedness  of  the  firm  to  Cornwall.      .      .      . 

Howe  recovered  a  judgment  in  his  action  against  Cornwall,  in  May, 
1858,  for  the  sum  of  $1,442.83  and  costs. 

This  judgment  remaining  wholly  unpaid,  the  defendants  in  error,  as 
the  assignees  thereof,  commenced  the  original  action  in  this  case,  in 
Januarj'-,  1859,  under  section  218  of  the  code,' seeking  to  subject  the 
plaintiffs  in  error,  who  are  the  members  of  said  firm,  to  liability,  by 
reason  of  the  alleged  unsatisfactory  and  untrue  character  of  the  answer 
of  the  firm,  as  such  garnishee,  and  to  recover  a  judgment  against  the 
plaintiffs  in  error,  individualh',  for  the  amount  of  the  property  and 
credits  of  Cornwall  in  the  possession  of  the  firm  at  the  time  when  it 
was  so  garnisheed. 

The  petition  in  the  court  below  alleged  that  the  answer  of  the  firm 
in  the  garnishee  proceeding  was  untrue,  in  averring  that  the  firm  was 
not  indebted  to  Cornwall  and  had  none  of  his  propert}'  under  its  con- 
trol, when  in  fact  it  was  so  indebted,  and  had  the  control  of  such  prop- 
erty to  the  amount  of  $1,400. 

The  defendants  demurred  to  this  petition,  on  the  grounds  :  i.  That 
the  action  should  have  been  brought  in  the  name  of  George  A.  Howe, 
the  plaintiff"  in  attachment,  and  could  not  be  maintained  in  the  name  of 
his  assignees,  the  present  plaintiffs  ;  2.  That  the  action  should  have 
been  brought  against  the  firm  by  its  -firm  name,  and  not  against  the 
members  of  the  firm  individually  ;  and  3.  That  the  petition  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer  was 
overruled  by  the  court. 

Moses  Kelley,  and  Prentiss  &  Baldwin,  for  plaintiffs  in  error. 

Keith  &  Coon,  in  person.- 

Scott,  J. — The  first  question  raised  by  the  assignments  of  error  in 
this  case  is  :  Did  the  court  below  err  in  overruling  the  demurrer  to 
the  plaintiff"'s  petition  ?  This  demurrer,  it  is  said,  should  have  been 
sustained  for  several  reasons. 

I.  It  is  claimed  that  the  action  should  have  been  brought  by  Howe, 
the  plaintiff"  in  attachment,  and  could  not  be  maintained  in  the  name  of 
his  assignees. 

The  right  of  action  against  a  garnishee,  given  by  section  218  of  the 
code,  was  intended  as  a  means  of  procuring  satisfaction  of  the  attaching 
creditor's  claim.     It  is  incidental  to,  and  inseparable  from,  the  owner- 

1  Enacting  that  if  a  garnishee  appear  and  answer  and  his  disclosure  be  not  satisfactory  to 
the  plaintiff  .  .  .  the  plaintiff  may  proceed  against  him  by  an  action.  Same  enactment 
in  Ohio  Revised  Stats.,  g§  5551,  5552. 

2  The  arguments  are  omitted. 


ARKANSAS  VALLEY  SMELTING  CO.   Z'.  BELDEN  MINING  CO.  iJS.^ 

ship  of  such  claim,  and  by  the  assignment  of  the  claim  passes  to  the 
assignee.  The  general  rule  of  the  code,  established  by  section  25,  is 
that  ' '  every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  "  and  the  only  exceptions  to  that  rule  are  to  found  in  section 
27.  None  of  them  relates  to  the  case  of  assignments.  But  section  26 
provides  that,  "  in  the  case  of  an  assignment  of  a  thing  in  action,  the 
action  dy  the  assignee s\id\\  be  without  prejudice,  "  etc.,  clearly  implying 
that  the  action  is  to  be  brought  by  the  assignee.  Where  at  common 
law  an  assignment  of  a  chose  in  action  would  pass  only  the  equitable 
title,  it  is  the  policy  of  the  code  to  vest  in  the  assignee  the  legal  title, 
.and  consequent  right  ot  action  in  his  own  name.     .     .     .' 

Day,  C.  J.,  and  Brinkerhoff,  Welch,  and  White,  JJ.,  concurred. 

Jiidgmeyit  affirmed.'' 


ARKANSAS  VALLEY  SMELTING  COMPANY  v.  BELDEN     y 
MINING    COMPANY. 

Supreme  Court  of  the  United  States,  May  14,  1888. 

[127  U.  S.  379.] 


L^^ 


This  was  an  action  brought  by  a  smelting  company,  incorporated  by  '^ 

the  laws  of  Missouri,  against  a  mining  company,  incorporated  by  the  ^ 
laws  of  Maine,  and  both  doing  business  in  Colorado  by  virtue  of  a,       ,   (J,-^' 

compliance  with  its  laws,  to  recover  damages  for  the  breach  of  a  con-  f^ 

1  Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point. 

2  See  also,  Sibley  v.  County  of  Pine  (1S83),  31  Minn.  201:  The  lien  of  an  attorney  for  his 
compensation  upon  a  judgment  is  assignable.  Kinney  v.  Diiluth  Ore  Co.  (1894),  58  Minn. 
455:  The  proper  transfer  of  a  claim  the  payment  of  which  may  be  enforced  under  the  ^'L-^t 
mechanic's  lien  law  (Minnesota  laws  of  1889,  ch.  200),  operates  in  Minnesota  as  the  assign-  "S  • 
ment  of  the  right  to  a  lien,  including  the  right  of  the  transferee  to  file  the  lien  statement  in 
his  own  name.  The  Victorian  Number  Two  (1894),  26  Ore.  194  (reviewing  authorities  on  the 
assignability  of  mechanics'  liens).  Duncan  v.  Haiun  (1894),  104  Cal.  10:  "  There  is  a  conflict 
in  authority  from  other  states  as  to  whether  statutory  liens  of  the  class  created  by  the  act  in 
question  pass  by  assignment  of  the  debt;  some  of  the  authorities  holding  that  it  is  strictly  a 
personal  right  and  dies  unless  asserted  in  the  hands  of  the  one  for  whose  benefit  it  is  pri- 
marily given ;  while  other  cases  hold  in  effect  that  being  given  as  security  for  the  performance 
of  the  obligation,  it  beromes  an  incident  which  follows  it  upon  assignment. 

"Whatever  may  be  the  rule  in  other  states,  in  the  absence  of  statutory  regulation,  it 
would  seem  that  the  code  solves  the  question  here  presented.  Section  2909  of  the  Civil  Code, 
speaking  on  the  subject  of  liens  in  general,  declares  that  'a  lien  is  to  be  deemed  accessory 
to  the  act  for  the  performance  of  which  it  is  security  ';  and  section  1084  of  the  same  code,  re- 
lating to  the  effect  of  transfer,  provides  that:  '  The  transfer  of  a  thing  transfers  also  all  its 
incidents,  unless  expressly  excepted.'  The  language  of  section  2909  may  be  taken  as  reler- 
ring  to  perfected  and  subsisting  liens."— P^r  Van-  Fleet,  J.  It  was  accordingly  held  that 
the  assignee  of  the  claims  of  certain  laborers  who  had  performed  work  of  the  character 
contemplated  in  a  California  statute,  on  the  threshing-machine  of  the  defendants,  could  sue 
to  enforce  and  foreclose  a  lien  for  the  value  of  this  labor. 

Compare  Mills  v.  La  Verne  Co.  (1893),  97  Cal.  254,  and  Rauer  v.  Fay  (1895),  no  Cal.  361,  367: 
"A  perfected  lien  may  be  assigned,  or  rather  it  passes  with  an  rssignment  of  the  demand 
for  which  it  stands  as  security.  The  mere  right  to  take  a  lieu  in  the  present  or  future 
is  not  assignable."— Pi?;-  Searls,  C.—Ed. 


386 


IX  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT 


tract  to  deliver  ore,  made  by  the  defendant  with  Billing  and  Eilers,  and 
assigned  to  the  plaintiflF.  The  material  allegations  of  the  complaint 
were  as  follows  : 

On  July  12,  1 88 1,  a  contract  in  writing  was  made  between  the  defend- 
ant of  the  first  part  and  Billing  and  Bilers  of  the  second  part,  by  which 
it  was  agreed  that  the  defendant  should  sell  and  deliver  to  Billing  and 
Eilers  at  their  smelting  works  in  Leadville  ten  thousand  tons  of  car- 
bonate lead  ore  from  its  mines  at  Red  Cliff,  at  the  rate  of  at  least  fifty 
tons  a  day,  beginning  upon  the  completion  of  a  railroad  from  Leadville 
to  Red  Cliff,  and  continuing  until  the  whole  should  have  been  deliv- 
ered, and  that  "all  ore  so  delivered  shall  at  once  upon  the  deliver}'- 
thereof  become  the  property  of  the  second  party  ; ' '  and  it  was  further 
agreed  as  follows  : 

"  The  value  of  said  ore  and  the  price  to  be  paid  therefor  shall  be  fixed  in 
lots  of  about  one  hundred  tons  each  ;  that  is  to  say,  as  soon  as  such  a  lot  of  ore 
shall  have  been  delivered  to  said  second  party,  it  shall  be  sampled  at  the 
works  of  said  second  party,  and  the  sample  assayed  by  either  or  both  of 
the  parties  hereto,  and  the  value  of  such  lots  of  ore  shall  be  fixed  by  such 
assay  ;  in  case  the  parties  hereto  can  not  agree  as  to  such  assay,  they  shall 
agree  upon  some  third  disinterested  and  competent  party,  whose  assay  shall  be 
final.  The  price  to  be  paid  by  said  second  party  for  such  lot  of  ore  shall  be 
fixed  on  the  basis  hereinafter~agreed  upon  by  the  closing  New  York  quotations 
for  silver  and  common  lead,  on  the  day  of  the  delivery  of  sample  bottle,  and  so 
on  until  all  of  said  ore  shall  have  been  delivered. 

"  Said  second  party  shall  pay  said  first  party  at  said  Leadville  for  each  such 
lot  of  ore  at  once,  upon  the  determination  of  its  assay  value,  at  the  following 
prices, ' '  specifying,  by  reference  to  the  New  York  quotations,  the  price  to  be 
paid  per  pound  for  the  lead  contained  in  the  ore,  and  the  price  to  be  paid  for 
the  silver  contained  in  each  ton  of  ore,  varying  according  to  the  proportions  of 
silica  and  of  iron  in  the  ore. " 

The  complaint  further  alleged  that  the  railroad  was  completed  on 
November  30,  1881,  and  thereupon  the  defendant,  under  and  in  compli- 
ance with  the  contract,  began  to  deliver  ore  to  Billing  and  Eilers  at 
their  smelting  works,  and  delivered  167  tons  between  that  date  and 
January  i,  1882,  when  ' '  the  said  firm  of  Billing  and  Eilers  was  dissolved, 
and  the  said  contract  and  the  business  of  said  firm,  and  the 
smelting  works  at  which  said 
sota 


works    at    which    said    ores 
assigned,   and   transferred   to    G. 


were   to    be    delivered,    were 
Billing,  whereof   the  defend- 


ant  had  due  notice ;  ' '  tnat  after  sucTi  transfer  and  assignment  the 
defendant  continued  to  deliver  ore  under  the  contract,  and  between 
January  i,  and  April  21,  1882,  delivered  to  Billing  at  said  smelting 
works  S94  tons ;  that  on  May  i,  1882,  the  contract,  together  with  the 
smelting  works,  were  sold  and  conveyed  by  "R'l]i"°f  ^^  ^h^  plaintiff, 
whereof  tlie  dei^fldant  had  due  notice  ;  tnat  the  defendant  then  ceased 
to  deliver  ore  under  the  contract,  and  afterwards  refused  to  perform  the 
contract,  and  gave  notice  to  the  plaintiff  that  it  considered  the  contract 


ARKANSAS  VALLEY  SMELTING  CO.  V.  BELDEN  MINING  CO. 


38T 


cancelled  and  annulled  ;  that  all  the  ore  so  delivered  under  the  con- 
tract was  paid  for  according  to  its  terms  ;  that  ' '  the  plaintiff  and  its 
assignors  were  at  all  times  during  their  respective  ownerships  read\-, 
able,  and  willing  to  pay  on  the  like  terms  for  each  lot  as  delivered, 
when  and  as  the  defendant  should  deliver  the  same,  according  to  the 
terms  of  said  contract,  and  the  time  of  payment  was  fixed  on  the  day 
of  delivery  of  the  '  sample  bottle, '  by  which  expression  was,  by  the  cus- 
tom of  the  trade,  intended  the  completion  of  the  assay  or  test  by  which 
the  value  of  the  ore  was  definitely  fixed;"  and  that  "the  said  Bil- 
ling and  Eilers,  and  the  said  G.  Billing,  their  successor  and  assignee, 
at  all  times  since  the  delivery  of  said  contract,  and  during  the  respec- 
tive periods  when  it  was  held  by  them  respectively,  were  able,  ready 
and  willing  to  and  did  comply  with  and  perform  all  the  terms  of  the 
same,  so  far  as  they  were  by  said  contract  required  ;  and  the  said  plain- 
tiff has  been  at  all  times  able,  ready,  and  willing  to  perform  and  comply 
with  the  terms  thereof,  and  has  from  time  to  time,  since  the  said  con- 
tract was  assigned  to  it,  so  notified  the  defendant." 

The  defendant  demurred  to  the  complaint  for  various  reasons,  one  of 
which  was  that  the  contract  therein  set  forth  could  not  be  assigned,  but 
was  personal  in  its  nature,  and  could  not,  by  the  pretended  assignment 
thereof  to  the  plaintiff,  vest  the  plaintiff  with  any  power  to  sue  the 
defendant  for  the  alleged  breach  of  contract. 

The  circuit  court  sustained  the  demurrer,  and  gave  judgment  for  the 
defendant ;  and  the  plaintiff  sued  out  this  writ  of  error. 

Mr.  R.  S.  Morrison,  Mr.  T.  M.  Patterson,  and  Mr.  C.  S.  Thomas, 
for  plaintiff  in  error.' 


I  On  behalf  of  the  plaintiff  in  error,  the  following  points,  among  others,  were  submitted: 
•'  This  is  an  executory  contract.  The  rule  as  to  the  assignability  of  such  instruments  is  that 
all  contracts  may  be  assigned,  either  before  or  after  the  breach,  which  were  not  entered  into 
upon  the  one  side  or  the  other  upon  the  basis  of  a  personal  trust  in  the  peculiar  fitness  of 
the  other  party  to  perform  his  part.  The  illustration  so  often  used  is  that  of  an  author  to 
write  a  book;  or  an  artist  to  paint  a  picture;  neither  of  which  can  be  assigned  on  the  part  of 
the  person  whose  genius  is  depended  upon.  But  an  agreement  to  pay  $i,ooo  for  a  valuable 
consideration,  or  to  deliver  ten  tons  of  coal  at  so  much  per  ton,  can  not  belong  to  this  class 
of  cases,  as  in  either  instance  it  can  make  no  difference  to  either  pirty  who  executes  the 
other  part  ol'  the  contract.  Where  taste,  skill,  or  genius  is  one  of  the  elements  relied  upon, 
the  contract  can  not  be  assigned;  where  it  is  onry  a  question  of  so  much  lost  or  so  much 
gained,  whoever  performs  the  contract,  it  may  be  assigned. 

"To  which  class  does  the  contract  in  the  case  at  bar  belong?  Reduced  to  its  elements  the 
contract  amounts  to  no  more  than  an  agreement  on  the  one  side  to  sell  ten  thousand  tons  of 
ore,  and  on  the  other  to  i  eceive  and  pay  for  the  same.  It  makco  no  difference  to  the  one  party 
who  o-ives  him  the  ore,  nor  to  the  other  who  pays  him  the  price;  all  that  both  parties  want 
is  what  they  have  contracted  to  get.  No  peculiar  fitness  on  either  side  is  needed  to  fulfill  the 
contract,  and,  in  point  of  fact,  the  contract  is  one  which  from  its  very  nature  has  to  be  per- 
formed largely  through  the  medium  of  agents.  The  contract  is  no  more  nor  less  than  an 
article  of  property  to  each  party,  and  the  policy  of  the  law  is  to  let  such  articles  of  property 
pass  from  hand  to  hand  with  as  much  freedom  as  is  requisite  to  make  them  valuable. 

"  While  all  the  cases  lay  down  the  rule  as  we  have  above  stated,  the  New  York  Court  of 
Appeals  in  Devlin  v.  Mayor,  63  N.  Y.  8,  16,  has  given  us  a  criterion  by  which  we  can  the  more 
readily  bring  the  present  case  within  the  terms  of  the  rule.  This  cr'.terion  is,  that  whatever 
contracts  are  binding  upon  the  executors  or  administrators  may  be  assigned,  while  those 
that  die  with  the  person  can  not  be  assigned.  While  it  is  true  that  in  both  instances  we  must 


IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


Xo  appearance  for  defendant  in  error. 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported,  delivered 
the  opinion  of  the  cov;rt. 

If  the  assignment  to  the  plaintiff  of  the  contract  sued  on  was  valid, 
the  plaintiff  is  the  real  part}'  in  interest,  and  as  such  entitled,  under 
the  practise  in  Colorado,  to  maintain  the  action  in  his  own  name. '  The 
vital  question  in  the  case,  therefore,  is  whether  the  contract  between 
the  defendant  and  Billing  and  Eilers  was  assignable  by  the  latter,  under 
the  circumstances  stated  in  the  complaint. 

At  the  present  day,  no  doubt,  an  agreement  to  pay  money,  or  to 
I  deliver  goods,  may  be  assigned  by  the  person  to  whom  the  money  is  to  be 
paid  or  the  goods  are  to  be  delivered,  if  there  is  nothing  in  the  terms  of  the 
contract,  whether  by  requiring  something  afterwards  to  be  done  by  him 
or  by  some  other  stipulation,  which  manifests  the  intention  of  the  par- 
ties that  it  shall  not  be  assignable. 

But  everyone  has  a  right  to  select  and  determine  with  whom  he  will 
contract,  and  can  not  have  another  person  thrust  upon  Jiim  T^:ithout  his 
coiosent.  Inthe  familiar  phrase  of  Lord  Denman,  '  'You  have  the  right 
to  the  benefit  you  anticipate  from  the  character,  credit,  and  substance  of 
the  party  with  whom  3-ou  contract.  "  ^ 

The  rule  upon  this  subject,  as  applicable  to  the  case  at  bar,  is  well 
expressed  in  a  recent  English  treatise.  "  Rights  arising  out  of  con- 
tract  can  not  be  transferred  if  they  are  coupled  with  liabilities,  or  if_they 
involve  aTrelation  of  personal  confidence  such  that  the  party^jffihjose 
agreement  conferred  those  rights  must  have  intended  them_to  Jbe,.£xer- 
cised  only  by  him  in  whom  he  actuanj'' confided. ' '  Pollock  on  Contracts 
l^h.  ed.)  425T  '  ~- 

The  contract  here  sued  on  was  one  by  which  the  defendant  agreed  to 
deliver  ten  thousand  tons  of  lead  ore  from  its  mines  to  Billing  and 
Eilers  at  their  smelting  works.     The  ore  was  to  be  delivered  at  the  rate 

go  back  to  the  principle  of  personal  skill,  taste,  or  genius,  as  the  real  test,  the  fact  that  this 
has  been  the  test  so  far  as  executors  and  administrators  are  concerned  for  centuries  of  the 
common  law,  will  make  it  much  easier  to  apply  in  the  :natter  of  the  assignability  of  con- 
tracts. So  that  all  the  cases  deciding  the  question  of  the  liability  or  rights  of  the  executor 
or  administrator  upon  executorj-  contracts  of  the  decedent,  can  be  quoted  as  applicable  to 
the  question  of  the  assignab'lity  of  contracts.     .     .     . 

"The  American  authorities  are,  if  it  were  possible,  much  stronger  upon  the  side  of  the 
assignability  than  are  the  English.  No  state  has  rendered  a  greater  number  of  decisions, 
and  all  to  the  same  end,  on  this  question  than  New  York;  and  in  view  of  her  great  commer- 
cial power,  no  state  should  be  lisenedto  with  more  respect.  Devlin  v.  Mayor,  63  N.  Y.  8; 
Sears  V.  Conover,  3  Keyes,  113;  Tyler  v.  Barro-cs,  6  Robertson  (N.  Y),  104;  Horner  xi.  IVood, 
23  N.  Y.  350.  See,  also,  in  reports  of  other  states,  Taylor  v.  Palmer,  31  Cal.  240;  Parsons  v. 
.  IVoodward,  22  N.  J.  1,.  (2  Zabriskie)  196;  Philadelphia  v.  Lockhardl,  73  Penn.  St.  211;  Lafferly 
■V.  Rutherford,  5  Ark.  453;  St.  Louis  <'.  Clemetis,  42  Mo.  69;  Groot  v.  Story,  41  Vt.  533. 

"  The  reports  show  us  many  cases  in  which  contracts  have  been  held  to  be  personal  and 
not  assignable;  but  the  majority  are  clearly  on  the  other  side  of  the  line." 

1  Citing,  Rev.  Stat.,  §914;  (See  Practice  Conformity  Act,  infra);  Colorado  Code  of  Civil 
Procedure,  g  3;  Albany  &  Rensselaer  Co.  r.  L,undberg,  121  U.  S.  451;  ante,  p.  19S. 

2  Citing,  Humble  v.  Hunter,  12  Q.  B.  310,  317;  Winchester  v.  Howard,  97  Mass.  303,  305; 
Boston  Ice  Co.  v.  Potter,  123  Mass.  28;  King  v.  Batterson,  13  R.  I.  117,  120;  Lansden  1.  Mc- 
Carthy, 45  Mo.  106. 


ARKANSAS  VALLICV  SMKLTING  C(J. 


i;i;li)i:x  mining  ccj. 


o^'J 


of  fifty  tons  a  day,  and  it  was  expressly  agreed  that  it  should  become 
the  property  of  Billing  and  Eilers  as  soon  as  delivered.  The  price  was 
not  fixed  by  the  contract,  or  payable  upon  the  delivery  of  the  ore.  But, 
as  often  as  a  hundred  tons  of  ore  has  been  delivered,  the  ore  was  to  be 
assayed  by  the  parties  or  one  of  them,  and,  if  they  could  not  agree,  by 
an  umpire ;  and  it  was  only  after  all  this  had  been  done,  and  according 
to  the  result  of  the  assay,  and  the  proportions  of  lead,  silver,  silica 
and  iron,  thereby  proved  to  be  in  the  ore,  that  the  price  was  to  be 
ascertained  and  paid.  During  the  time  that  must  elapse  between  the 
delivery  of  the  ore,  and  the  ascertainment  and  the  payment  of  the  price, 
the  defendant  had  no  security  for  its  payment,  except  in  the  character 
and  solvency  of  Billing  and  Eilers.  The  defendant,  therefore,  could  not 
be  compelled  to  accept  the  liability  of  any  other  person  or  corporation 
as  a  substitute  for  the  liability  of  those  with  whom  it  had  contracted. 

The  fact  that  upon  the  dissolution  of  the  firm  of  Billing  and  Eilers, 
and  the  transfer  by  Eilers  to  Billing  of  this  contract,  together  with  the 
smelting  works  and  the  business  of  the  partnership,  the  defendant  con- 
tinued to  deliver  ore  to  Billing  according  to  the  contract,  did  not  oblige 
the  defendant  to  deliver  ore  to  a  stranger,  to  whom  Billing  had  under- 
taken, without  the  defendant's  consent,  to  assign  the  contract.  The 
change  in  a  partnership  by  the  coming  in  or  the  withdrawal  of  a  part- 
ner might  perhaps  be  held  to  be  within  the  contemplation  of  the 
parties  originally  contracting  ;  but,  however  that  may  be,  an  assent  to 
such  a  change  in  the  one  party  can  not  estop  the  other  to  deny  the 
validity  of  a  subsequent  assignment  of  the  whole  contract  to  a  stranger. 
The  technical  rule  of  law,  recognized  in  Murray  v.  Harway,  56  N.  Y. 
337,  cited  for  the  plaintiff,  by  which  a  lessee's  express  covenant  not  to 
assign  has  been  held  to  be  wholly  determined  b}'  one  assignment  with 
the  lessor's  consent,  has  no  application  to  this  case. 

The  cause  of  action  set  forth  in  the  complaint  is  not  for  any  failure 
to  deliver  ore  to  Billing  before  his  assignment  to  the  plaintiff,  (which 
might  perhaps  be  an  assignable  chose  in  action,)  but  it  is  for  a  refusal 
to  deliver  ore  to  the  plaintiff  since  this  assignment.  Performance  and 
readiness  to  perform  by  the  plaintiff  and  its  assignors,  during  the  pe- 
riods for  which  they  respectiveh^  held  the  contract,  is  all  that  is  alleged ; 
there  is  no  allegation  that  Billing  is  ready  to  pay  for  any  ore  delivered 
to  the  plaintiff.  In  short,  the  plaintiff  undertakes  to_st'pp  intn  tlvf  , 
shoes  of  Billing,  and  to  substitute  its  liability  for  his.  The  defendant  } 
had  a  perfect  right  to  decline  to  assent  to  this,  and  to  refuse  to  remp-nigio 

a  jnrl-y,  WJI  H  whom  it  had  never  CO^trf'^^^i  ^'^  pntil-lpd  ic\  dptnond-fm^  1 

ther  deliveries  of  ore.    ^ 

"The  cases  cited  in  the  careful  brief  to  the  plaintiff's  counsel,  as  tend- 
ing to  support  this  action,  are  distinguishable  from  the  case  at  bar,  and 
the  principal  ones  may  be  classified  as  follows  : 

First.     Cases  of  agreements  to  sell   and  deliver   goods  for  a  fixed 
price,  payable  in  cash  on  delivery,  in  which  the  owner  would  receive 


\y^ 


390  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

the  price  at  the  time  of  parting  with  his  property,  nothing  further 
would  remain  to  be  done  b}'  the  purchaser,  and  the  rights  of  the  seller 
could  not  be  affected  by  the  question  whether  the  price  was  paid  by  the 
person  with  whom  he  originally  contracted  or  by  an  assignee.' 

Second.     Cases  upon  the  question  how  far  executors  succeed  to  rights 
and  liabilities  under  a  contract  of  their  testator.'-^ 

Assignment  by  operation  of  law%  as  in  the  case  of  an  executor,  is, 
quite  different  from  assignment  by  act  of  the  party  ;  and  the  one 
might  be  held  to  have  been  in  the  contemplation  of  the  parties  to  this 
contract  although  the  other  was  not.  A  lease,  for  instance,  even  if 
containing  an  express  covenant  against  assignment  by  the  lessee, 
passes  to    his    executor.       And  it  is  by  no    means  ripar  that  an  pypnntor 

w^ould  be  bound  to  perform,  or  would  be  entitled  to  the  benefit  of,  such 

a  pon tract  a.s  that  now  in   qnp<;tion —  Dickinson  V.  Calcthaii,  19  Penn. 

St.  227. 
I       Third.      Cases  of  assignment    by  contractors  for  public  works,   in 
'which  the  contracts,  and  the  statutes  under  which  they  were  made, 

were  held  to  permit  all  persons  to  bid  for  the  contracts,  and  to  execute 

them  through  third  persons.^ 

Fourth.     Other  cases  of  contracts  assigned  by  the  party  who  was  to 

do  certain  work,  not  by  the  party  who  was  to  pay  for  it,  and  in  which 
'  the  question  was  whether  the  work  was  of  such  a  nature  that  it  was 

intended  to  be  performed  by  the  original  contractor  only.* 

Without  considering  whether  all   the  cases  cited  were  well  decided,  it 

is  sufficient  to  say  that   none  of  them  can  control   the  decision  of  the 

present  case. 

Judgment  affirmed. 

1  Citing,  Sears  v.  Conover,  3  Keyes,  113,  and  4  Abbott  (N.  Y.  App.),  179;  Tyler  v.  Barrows, 
6  Robertson  (N.  Y.),  104. 

2  Citing,  Hambly  v.  Trott,  Cowper,  371,  375;  Wentworth  v.  Cock,  10  Ad.  &  El.  42  and  2  Per. 
&  Dav.  251;  Williamson  Executors  (7th  ed.),  1723-1725. 

3  Citing,  Taylor  v.  Palmer,  31  Cal.  240,  247;  St.  Louis  v.  Clemens,  42  Mo.  69;  Philadelphia 
V.  Lockhardt,  73  Penn  St.  211;  Devlin  v.  New  York,  63  N.  Y.  8. 

■♦  Citing,  Robson,  v.  Drummond,  2  B.  &  Ad.  303;  British  Waggon  Co.  v.  Lea,  5Q.  B.  D.  149; 
Parsons  v.  Woodward,  2  Zabriskie,  196. 


NOTE.— INSTANCBS    OF    CONTRACTUAL    RIGHTS    HELD    NON- .ASSIGNABLE. 

\/  In  Delaware  County  v.  Diebold  Safe  Co.  (1S90),  133  U.  S.  473,  488,  Mr.  Justice  Gray,  de- 

livering the  opinion,  remarked:  "A  contract  to  pay  money  may  doubtless  be  assigned  by  the 
person  to  -whom  the  money  is  payable,  if  there  is  nothing  in  the  terms  of  the  contract  which 
manifests  the  intention  of  the  parties  to  it  that  it  shall  not  be  assignable.  But  when  rights 
arising  out  of  contract  a  e  coupled  with  obligations  to  be  performed  by  the  contractor,  and 
involve  such  a  relation  of  personal  c  mfidence  that  it  must  have  been  intended  that  the 
rights  should  be  exercised  and  the  obligations  performed  by  hini  alone,  the  contract, 
including  both  his  rights  and  his  obligations,  can  not  be  assigned  without  the  consent  of  the 
other  party  to  the  original  contract.  Arkansas  Co.  v.  Belden  Co.,  127  U.  S.  379,  3S7,  388.  And 
th  •  fact  that  that  party  is  or  represents  a  municipal  corporation  maj'  ha  e  a  bearing  upon 
the  question  whether  the  contract  is  cssignable,  in  whole  or  in  part,  without  its  assent." 

The  facts  in  ll<^st(>"  ^''''  Cnmhnnv  v.  Potter  (1877),  123  Mass.  28,  referred  to  in  the  text,  were 
as  follows:  A.,  who  had  bo\ight  ice  of  B.,  ceased  to  fake  it,  because  of  dissatisfaction  with  B., 


CONTRACTUAL  UIGIITS  HELD  NON-ASSIGNABLE. 


391 


and  contracted  for  ice  with  C.  SubseeiueiUly  B.  bought  C.'s  business,  and  delivered  ice  to 
A.,  without  notifying  him  of  his  purchase  until  after  the  delivery  and  consumption  of  the 
ice.    Held,  that  B.  could  not  sue  A.  for  the  price  of  the  ice. 

Hut  if  a  defendant  has  received  goods  knowing  they  are  sent  by  the  assignee  and  does  not 
return  them,  the  assignee  may  sue.     Cincinnati  Gas  Co.  v.  Siemens  Co.  (1894),  152  U.  S.  200,  1 
202. 

See  further,  Kappleye  v.  Racine  Seeder  Co.  (1890),  79  Iowa,  220:  The  defendant  company 
contracted  with  G.  to  sell  him  a  certain  number  of  machines,  for  which  payment  was  to  be 
made  by  G.'s  promissory  notes  as  the  machines  were  delivered;  G.  was  to  have  the  exclusive 
sale  ot  the  machine;  in  certain  territory,  was  to  canvass  the  territory  for  the  sale  of  the 
machines,  and  was  to  turn  over  to  the  defendant  the  cash  and  notes  so  taken— '.he  cash  to  be 
endorsed  as  payment  on  G.'s  notes,  and  the  notes  to  be  held  as  collateral  security.  After 
some  of  the  machines  had  bee  1  .sold  by  G.  and  delivered  to  purchasers  under  the  contract,  G. 
became  insolvent,  and  assigned  for  the  benefit  of  his  creditors.  The  defendant  notified  the 
assignee  that  it  would  regard  the  contract  as  ended  and  -would  furnish  no  more  machines 
thereunder;  the  defendant  then  entered  the  same  territory  and  sold  the  machines  there. 
The  assignee  sued  in  Iowa  for  a  breach  of  this  contract.  Held,  that  secticns  20S2-20S7  of  the 
Iowa  code,  making  all  contracts  assignable,  did  not  authorize  a  suit  by  the  assignee  on  the 
facts  stated. 

And  see,  IVorden  v.  Chicago  R.  R.  (1891),  82  Iowa,  735;  Schoonover  v.  Osborne,  (1899),— 
Iowa, ,  79  N.  W.  263. 

Accord  al.so,  Chapin  v.  Longworth  (1877),  31  O.  S.  421  (executory  contract  for  personal 
services);  RedhcJTer  v.  LeaihelyrS3;j-,  15  M J.  App.  12;  Hilton  v.  Croaker  (1890),  30  Neb.  707,  716; 
Hardy  Implement  Co.  v.  South  Bend  Iron  Works  (1895),  129  Mo.  222,  228;  Bancroft  v.  Scribner 
(1896),  21  CO.  A.  352;  Sprankle  v.  Trulove,  (1899),  22  Ind.  App.  577,  590.  Other  citations  will 
be  found  in  Wald's  Pollock  on  Contracts  (2nd  ed.)  425. 

So,  under  statutorj'  relations,  the  mere  right  of  a  laborer  or  material  man  to  assert  and 
-create  a  lien  under  a  mechanic's  lien  law  may  be  a  personal  right  and  not  assignable.  Mills 
V.  La  Verne  Land  Co.  (1S93),  97  Cal.  254.  But  a  perfected  lien  may  be  assigned,  or  pass  with 
an  assignment  of  the  demand  for  which  it  stands  as  security.     Raicer  v.  Fay  (1S95),  no  Cal. 

361,  367- 

Likewise,  a  right  arising  ejr  contractu  may  be  non-assignable  for  reasons  of  public  policy, 
as  when  a  public  officer  assigns  his  unearned  salary  or  fees.  Bliss  v.  Lawrence  (1874),  58  N. 
Y.  442;  Bowery  National  Bank  v.  Wilson  (1S90),  122  N.  Y.  478;  in  re.  Matter  of  Worthington 
<i894),  141  N.  Y.  9;  Field  v.  Chipley  (i88i),  79  Ky .  260;  Bangs  v.  Dunn  (1884),  66  Cal.  -ji.—Ed. 

Compare,  Boatman  v.Lasley  (1873),  23  O.  S.  614:  A  right  of  v^ayin  grossis  a  right  personal 
to  the  grantee  and  can  not  be  made  a.ssignable  by  any  words  in  the  deed  by  which  it  was 
grante  !.  Say  v.  Stoddard  ( 1895) ,  27  O.  S.  478:  A  tenant  at  will  "  has  no  certain  indefeasible 
estate,  nothing  that  can  be  assigned  by  him  to  any  other,  because  the  lessor  may  determine 
his  will,  and  put  him  out  whenever  he  pleases."  Moore  v.  Mayor  of  New  York  (1S53),  no; 
Witthaus  V.  Schack,  (18S7),  105  N.  Y.  332,  336:  "  The  settled  theory  of  the  law  as  to  the  nature 
of  an  inchoate  right  of  dower  is  that  it  is  not  an  estate  or  interest  in  land  at  all,  but  is  a  con- 
tingent claim  aris  ng  not  out  of  contract  but  as  an  institution  of  law,  constituting  a  mere 
chose  in  action,  incapable  of  transfer  by  grant  or  conveyance  but  susceptible  only,  during  its 
inchoate  state,  of  extinguishment."— P<?;-  Ruger,  C.  J. 


cW' 


&iuJ 


392  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

LA  RUE  z'.  GROEZINGER. 

Supreme  Court  of  California,  June  6,  1890. 

[84  Ca/.  281.] 

Appeal  from  a  judgment  of  the  Superior  Court  of  Napa  County,  and 
from  an  order  refusing  a  new  trial. 

The  facts  are  stated  in  the  opinion. 

F.  E.  Johnston,  and  E.   W.  McKinstry,  for  appellant. 

A.  P.  Catlin,  ^indi  Dennis  Spencer,  for  respondent.' 

Hayne,  C. — This  was  an  action  for  damages  for  the  breach  of  a  con- 
tract to  buy  grapes.  The  substance  of  the  material  portions  of  the 
contract  was  as  follows  : 

One  Hopper  agreed  to  sell  all  the  grapes  which  he  might  raise  during- 
a  period  of  ten  years  from  the  vines  which  were  then  growing,  or 
which  he  might  thereafter  plant,  in  a  certain  vineyard.  The  grapes 
were  to  be  "sound",  and  were  to  be  gathered  when  they  contained 
twenty-two  per  cent,  of  saccharine  matter,  and  to  be  delivered  in 
boxes  at  the  wine-cellar  of  the  defendant;  the  "first  crop"  to  be 
delivered  separately  from  the  ' '  second  crop  ' '  of  the  same  year.  In 
consideration  whereof  the  defendant  agreed  to  accept  the  grapes  and 
pay  for  them  (after  delivery)  at  the  rate  of  twenty-five  dollars  per  ton, 
in  specified  installments, — any  advancement  which  might  be  made  to 
draw  interest  at  a  given  rate. 

The  parties  performed  this  contract  for  five  years.  At  the  end  of 
that  time,  viz.,  in  October,  1885,  Hopper  conveyed  the  vineyard  and 
assigned  the  contract  to  the  plaintiff".  At  the  time  of  the  transfer  the 
"first  crop"  of  that  year  was  being  delivered  by  third  parties,  who  had 
made  advances  upon  it.  The  plaintiff  does  not  appear  to  have  had  any- 
thing to  do  with  this  crop.  He  gathered  the  "second  crop"  of  the 
same  year,  however,  and  delivered  it  to  the  defendant,  who  accepted  and 
paid  for  it.  This  crop,  it  will  be  obser\'ed,  was  grown  during  the 
ownership  of  Hopper,  and  consequently  may  be  supposed  to  have  re- 
ceived the  benefit  of  whatever  care  and  skill  he  may  have  been  able  to 
give  it.  The  crop  of  the  following  year  was  grown,  gathered,  and 
tendered  by  the  plaintiff".  The  defendant  refused  to  accept  it,  saying 
that  he  had  no  contract  with  the  plaintiff",  and  was  not  buying  grapes. 
The  plaintiff"  thereupon  sold  the  crop  to  the  best  advantage  he  could, 
and  brought  this  action  to  recover  the  difference  in  price  and  the  ex- 
penses of  resale.  The  jury  rendered  a  verdict  in  his  favor  for  $2,473.20, 
and  judgment  was  entered  accordingly.  Afterward  the  court  required 
him  to  remit  $119.20  as  a  condition  of  denjang  the  defendant's  motion 
for  new  trial.  Such  remission  was  made,  and  the  defendant  appeals 
from  the  judgment  and  the  order  denying  a  new  trial. 

1  The  arguments  are  omitted. 


I. A  ra'K  v.  GROEZINGF.R.  393 

I.     It  is  contended  that  the  contract  was  not  assignable. 

The  rule  of  the  early  common  law  as  to  the  assignability  of  choses 
in  action  has  been  much  changed  in  modern  times.  The  Civil  Code  of 
this  state  provides  that  written  contracts  "  for  the  payment  of  money 
or  personal  property  "  may  be  transferred  by  cndorse7nent  in  the  same 
manner  as  negotiable  instruments  (Sec.  1459),  and  there  are  other  pro- 
visions, which  are  more  sweeping,  viz.  : 

"  Sec.  1044.  Property  of  any  kind  may  be  transferred,  except  as 
otherwise  provided  by  this  article. ' ' 

"Sec.  1458.  A  right  arising  out  of  an  obligation  is  the  property  of 
the  person  to  whom  it  is  due,  and  may  be  transferred  as  such.  " 

These  sections  seem  to  do  away  with  whatever  restrictions  there  may 
formerly  have  been  upon  the  power  of  the  parties  to  assign  their  ordi- 
nary contracts.  It  is  clear,  however,  that  the  provision  can  not  be  con- 
strued to  render  assignable  all  contracts  v/hatever,  regardless  of  their 
nature  or  effect,  but  must  be  taken  with  some  qualification. 

In  the  first  place,  it  was  not  intended  to  render  null  any  agreement 
that  the  parties  may  have  made  on  the  subject.  Hence,  if  the  contract 
itself  provides  in  terms  that  it  is  not  transferable,  it  certainly  can  not 
be  transferred,  although  otherwise  it  might  be  so.  Leases,  and  the 
tickets  usually  issued  by  railroad  companies ,  are  familiar  instances  of 
this.  Upon  the  same  principle,  although  a  contract  may  not  expressly 
say  that  it  is  not  transferable,  yet  if  there  are  equivalent  expressions 
or  language  which  excludes  the  idea  of  performance  by  another,  it  is 
not  assignable.  Of  this  character  is  the  case  of  SJmltz  v.  Johnson,  5 
B.  Mon.  497,  which  is  much  relied  upon  for  the  appellant.  There  the 
defendant  agreed  to  buy  from  one  Johnson  successive  crops  of  hemp, 
"of  his  own  raising  "  ;  and  it  was  held  that  the  defendant  could  not 
be  compelled  to  accept  hemp  raised  by  Johnson's  administrator.  The 
court  said  that  ' '  the  question  ....  in  everj'  case  must  turn  at 
last  upon  the  intention  of  the  parties, "  and  that  the  phrase  "  of  his 
own  raising  "  meant  that  the  hemp  was  to  be  raised  by  him  or  under 
his  personal  superintendence  and  direction. 

Upon  the  same  principle  it  would  probably  be  held  that  if  the  con- 
tract provided  that  it  would  not  be  assigned  to  a  particular  person,  it 
could  not  be  assigned  to  such  person.  And  it  would  seem,  from  one  of 
the  cases  cited  by  the  appellant,  that  if  an  intention  not  to  deal  with  a 
particular  person  appears  from  circumstances  outside  of  the  contract,  it 
can  not  be  assigned  to  such  person.  In  the  case  referred  to,  the  plain- 
tiff had  previously  been  supplying  the  defendant  with  ice ;  but  the 
latter  had  become  dissatisfied  and  had  transferred  his  custom  to  a 
company  called  the  Citizen's  Ice  Companj-,  and  had  made  a  contract 
with  it.  After  this  the  plaintiff  bought  out  the  Citizen's  Ice  Company, 
and  without  letting  the  defendant  know  of  the  transfer,  went  on  supply- 
ing him  wnth  ice.  When  the  defendant  found  out  what  had  been  done, 
he  refused  to  pay  for  the  ice,  and  the  court  held  that  he  was  not  liable, 


394  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

although  he  had  consumed  the  ice,  and  had  no  fault  to  find  with  it. 
Boston  Ice  Co.  v.  Potter,  123  Mass.  30.  We  think  that  this  case  may 
be  distinguished  from  the  one  before  us,  on  the  ground  of  the  extrane- 
ous circumstances  shov^ing  the  defendant's  intention  not  to  deal  with 
the  plaintiff.  If  it  can  not  be  so  distinguished  we  should  be  inclined  to 
question  the  soundness  of  the  decision. 

In  the  next  place,  although  the  language  may  not  show  an  intention 
that  the  contract  should  not  be  assigned,  yet  the  nature  of  the  case 
may  be  such  that  performance  by  another  would  be  a7i  essentially  differ- 
ent thing  irova.  that  contracted  for.  Thus  a  picture  by  one  artist  is  an 
essentially  different  thing  from  a  picture  on  the  same  subject  by 
another  artist ;  and  so  of  a  book  composed  hy  an  author,  or  any  other 
act  or  thing  where  the  skill,  credit,  or  other  personal  quality  or  circum- 
stance of  the  party  is  a  distinctive  characteristic  of  the  thing  contracted 
for,  or  a  material  inducement  to  the  contract.  Under  this  general  head 
come  several  cases  relied  upon  for  the  appellant.  Thus  in  Laiisden  v. 
McCarthy ,  45  ]\Io.  106,  it  was  held  that  a  contract  to  deliver  meat  to  a 
hotel,  to  be  paid  for  at  the  e7td  of  each  month,  could  not  be  assigned  by 
the  hotel  keeper  ;  the  court  saying  :  "  The  defendant's  estimate  of  the 
solvency  and  pecuniary  credit  and  standing  of  the  plaintiff's  assignor 
may  have  constituted  an  important  inducement  to  the  contract  without 
w^hich  he  never  would  have  entered  it."  So  in  Arkansas  Smelting 
Company  V.  Belden  Co.,  i2-j  U.  S.  388,  it  was  held  that  a  contract  to 
sell  ore  to  a  smelting  company,  the  price  of  which  was  to  be  adjusted 
and  paid  by  the  mutual  acts  of  the  parties  after  deliver^',  was  not 
assignable  by  the  smelting  company  ;  the  court,  per  Gray,  J.,  sa3-ing  : 
"During  the  time  that  must  elapse  between  the  delivery  of  the  ore 
and  the  ascertainment  and  payment  of  the  price,  the  defendant  had  no 
security  for  its  payment,  except  in  the  character  and  solvenc}'  ' '  of  the 
smelting  company. 

If,  therefore,  the  case  before  us  comes  within  either  of  the  qualifica- 
tions above  stated,  then  it  must  be  conceded  that  the  contract  was  not 
assignable.  But,  if  it  does  not, — that  is  to  sa}-,  if  the  language  does 
not  exclude  the  idea  of  performance  by  another,  and  the  nature  of  the 
thing  contracted  for,  or  the  circumstances  of  the  case,  do  not  show 
that  the  skill,  credit,  or  other  personal  quality  or  circumstance  of  the 
party  was  a  distinctive  characteristic  of  the  thing  stipulated  for,  or  a 
material  inducement  to  the  contract, — then  the  contract  was  assignablie, 
under  the  provisions  above  quoted.  It  is  obvious,  therefore,  that,  in 
this  state  at  least,  the  question  whether  a  contract  is  assignable  is  a 
question  of  construction.  As  was  said  in  the  Kentucky  case  above 
referred  to,  "  the  question  ....  in  every  case  must  turn  at  last 
upon  the  intention  of  the  parties."  But  upon  a  proper  construction, 
there  is  nothing  to  show  that  the  contract  was  not  assignable. 

(a)  There  is  nothing  in  the  language  which  excludes  the  idea  of 
performance  by  another. 


LA  RUE  V.  GROEZINGER.  895 

The  mere  fact  that  the  name  of  the  owner  of  the  vineyard  was  used 
does  not  exclude  the  idea  of  such  performance.  The  name  of  the  con- 
tracting party  is  almost  always  inserted  as  a  convenient  means  of 
identification.  Thus  where  John  Smith  signs  a  contract  which  stated 
that  John  Smith  agrees  to  pay  John  Doe  a  sum  of  money  in  considera- 
tion of  a  conveyance  of  land  which  the  latter  agrees  to  make  to  the 
former  upon  such  payment,  there  can  be  no  doubt  that  the  use  of 
Smith's  name  does  not  indicate  an  intention  that  his  assignee  could  not 
perform  the  contract.  To  say  otherwise  would  be  to  say  that  hardl}^ 
any  contract  is  assignable  unless  the  word  "assigns,"  or  equivalent 
language,  is  inserted,  which  would  hardly  be  contended. 

Nor  is  the  use  of  personal  pronouns  of  more  significance.  The  coun- 
sel for  the  appellant  lay  stress  upon  the  circumstance  that  Hopper 
agreed  to  deliver  ' '  all  the  grapes  he  may  raise  on  the  vines  he  now  has 
growing  on /n'j- place, "  etc.  But  it  seems  clear  that  these  pronouns 
were  used  as  equivalents  of  the  proper  name,  and  merely  to  save  repe- 
tition of  such  name.  They  do  not  import  a  desire  for  the  personal  serv- 
ices or  attention  of  the  owner  as  contradistinguished  from  his  assignee. 
This  will  be  readily  seen  if  the  same  words  are  applied  to  different  sub- 
ject matter.  Thus  if  it  be  agreed  to  buy  from  another  at  a  fixed  price 
a  specific  quantity  of  fire- wood,  which  he  agrees  to  cut  during  a  certain 
period  from  the  timber  he  then  has  growing  upon  his  farm,  etc.,  it 
would  surel}'  not  be  argued  that  the  mere  language  indicated  that  the 
wood  was  to  be  cut  by  the  owner  himself,  or  by  his  agents,  and  not  by 
his  assignee.  And  so  of  similar  language  in  contracts  to  pay  money, 
to  convey  land,  and  the  like. 

(b)  There  is  nothing  in  the  nature  or  the  circumstances  of  the  case 
which  shows  that  the  skill  or  other  personal  quality  of  the  party  was  a 
distinctive  characteristic  of  the  thing  stipulated  for,  or  a  material 
inducement  to  the  contract. 

There  is  no  evidence  that  grapes  for  wine-making,  containing  a  speci- 
fied amount  of  saccharine  matter,  raised  upon  a  particular  vineyard  b}' 
one  man,  would  necessarily  or  probably  be  different  from  grapes  raised 
from  the  same  vines  by  another  man.  Possibly  there  would  be  a  differ, 
ence  between  grapes  from  different  vineyards,  as  the  difference  between 
the  climate  and  soil  of  different  places  in  close  proximity  is  known  to  be 
considerable.  But  here  not  only  is  the  vineyard  the  same,  but  the 
vines  were  the  same, — that  is  to  say,  the  crop  in  question  was  from 
vines  planted  by  the  assignor. 

It  is  not  impossible  that  one  man  might  have  some  peculiar  skill  of 
secret  by  which  he  could  raise  better  grapes  from  the  same  vines  than 
other  men  could.  But  there  is  no  evidence  that  there  was  any  such 
peculiarity  about  the  original  owner  of  this  vineyard,  and  we  do  not 
think  that  the  court  will  assume  that  there  was.  And  while  it  is  to  be 
conceded  that  men  have  perfect  liberty  to  contract  with  whom  th  ey 
choose,  and  to  exclude  the  idea  of  performance  by  another,  yet  in  the 


396  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

absence  of  anything  indicating  such  an  intention,  we  do  not  think  that 
the  court  should  indulge  in  speculation  as  to  possible  prejudice  or 
fancied  preference.  It  should  not  assume  that  the  parties  were 
influenced  by  unusual  or  conjectural  motives  merely  because  some  men 
mio-ht  be  so  affected  under  similar  circumstances.  For  example,  some 
men  of  solvency  and  credit  have  preferences  as  to  the  persons  from 
whom  they  borrow  money,  and  would  be  displeased  at  having  their 
paper  passed  around  among  usurers.  Yet  at  the  present  day  all  the 
courts  would  hold  that,  in  the  absence  of  indication  of  a  contrary 
intention,  contracts  for  the  payment  of  money  are  assignable.  So  in 
many  cases  owners  of  real  property  have  some  choice  as  to  the  persons 
they  admit  as  tenants.  Yet  it  is  well  settled  that  an  ordinary  lease  is 
assignable  by  the  tenant,  in  the  absence  of  the  manifestation  of  a  contrary 
intention.  And  the  case  of  a  lease  is  not  to  be  disposed  of  by  saying 
that  it  is  an  interest  in  property.  For  by  the  express  provision  of  the 
code,  the  right  to  the  performance  of  an  obligation  is  property.  (Civ. 
Code,  sec.  1458.) 

These  instances,  and  others  which  might  be  mentioned,  show  that  it 
will  not  do  to  indulge  in  conjecture  as  to  fanciful  and  unusual  motives 
and  prejudices.  Now,  in  the  case  before  us,  as  has  been  stated,  there 
is  no  evidence  of  anything  from  which  it  can  be  inferred  that  perform- 
ance was  to  be  by  the  original  owner  of  the  vineyard,  and  not  by 
another.  Suppose  that  he  had  gone  to  live  permanenth'  in  Europe, 
and  had  given  no  kind  of  attention  or  supervision  to  the  place,  would 
it  have  been  contended  that  under  such  circumstances  the  defendant 
would  have  been  justified  in  refusing  to  accept  grapes  of  the  required 
standard  grown  upon  the  vineyard  by  an  agent  ?  We  imagine  not. 
And  in  the  case  put,  there  would  be  no  kind  of  supervision  by  the 
owner,  who  would  be  entirely  and  permanently  absent.  And  it  seems 
purely  fanciful  to  sa}-  that  in  such  case  he  would  exercise  some  skill  in 
the  selection  of  an  agent,  and  that  the  parties  must  be  supposed  to 
have  had  this  in  view.  Now,  if  in  the  case  put,  the  defendant  would 
be  liable,  how  can  it  be  said  that  the  circumstances  show  that  the 
personal  qualities  of  the  owner  were  a  material  inducement  to  the  con- 
tract ?  We  can  not  see  any  reason  that  would  make  this  contract  non- 
assignable which  would  not  equally  apply  to  the  ordinary  crops  of 
corn,  wheat,  oats,  potatoes,  etc.  If  in  such  cases  a  party  prefers  to 
deal  with  one  person  to  the  exclusion  of  assignees,  it  is  very  easy  to 
indicate  such  preference  in  the  contract.  Courts  will  not  assume  that 
unusual  motives  exist. 

The  learned  counsel  for  the  appellant  have  advanced  other  considera- 
tions, which  may  be  noticed  briefly. 

The  fact  that  the  contract  provided  in  substance  that  if  advances 
should  be  made  by  the  wine-maker  they  should  bear  interest  at  a  cer- 
tain rate  does  not  indicate  that  the  solvency  or  credit  of  the  owner  of 


LA  KUE  V.  GROEZINGER.  ?yi)l 

the  vineyard  was  an  inducement  to  the  contract ;  for  the  making  of  such 
advances  was  entirely  optional  with  the  wine-maker. 

Nor  is  there  anything  in  tlie  circumstance  that  the  owner  of  the 
vineyard  was  not  bound  to  raise  grapes.  What  the  contract  secured  to 
him  was  the  right  to  raise  grapes  of  a  specified  standard,  and  to  compel 
the  defendant  to  take  them  at  a  fixed  price.  This  may  have  been  an 
unwise  contract  for  the  defendant  to  make.  But  an  optional  contract 
upon  sufficient  consideration  is  binding.  Hall  v.  Center,  40  Cal.  63. 
And  the  mere  fact  that  it  is  optional  can  not  be  a  reason  why  it  should 
not  be  assigned. 

We  have  not  overlooked  the  distinction  pointed  out  by  counsel  be- 
tween executory  contracts  and  contracts  which  have  been  executed  on 
one  side.  What  we  have  said  applies  where  something  remains  to  be 
done  by  the  party  who  assigns. 

And,  as  a  matter  of  course  (since  a  part}'  can  not  release  himself  from 
an  obligation  by  his  own  act  without  the  consent  of  the  other  party), 
it  is  only  the  benefit  of  a  contract  which  can  be  assigned.  Where 
there  is  a  burden,  it  can  not  be  transferred  without  the  consent  of  the 
other  party.     Civ.  Code,  sec.  I457- 

It  may  be  added  that  we  have  examined  the  English  case  of  Robson 
V.  Drummond,^  cited  by  counsel,  but  consider  it  to  have  been  disap- 
proved in  the  subsequent  case  of  the  British  Waggon  Co.  v.  Lea  [1880], 
L,.  R.  5  Q.  B.  Div.  149.-  It  is  true  W\2X  the  principle  of  the  former  case 
was  approved  in  the  latter.  But  it  is  only  the  application  of  the  prin- 
ciple which  makes  the  case  in  point  here,  and  this  is  what  was  disap- 
proved in  the  latter  case,  which  did  not  turn  upon  the  use  of  the  word 
"executors,"  in  the  contract.'' 

VancliEF,  C,  and  Belcher,  C.  C,  concurred. 

Hearing  in  Bank  denied.* 

1  (1831)  2B.  &  Ad.  303. 

2  Found  also  in  Williston's  Cases  on  Contracts,  p.  449. 

3  Part  of  the  opinion,  on  another  point,  is  omitted.  The  judgment  was  modified  by  de- 
duc  ing  the  sum  of  $217.87,  and  as  thus  modified  was  affirmed. 

4  In  Devlin  v.  The  Mayor  (1S75),  63  N.  Y.  8,  the  plaintiff  sued  as  assignee  of  a  contract  en- 
tered into  between  the  City  of  New  York  and  one  Hackley,  under  an  act  for  cleaning  the 
streets  of  the  city.  By  the  contract,  the  contractor  agreed  to  sweep  all  the  paved  streets, 
avenues,  lanes,  alleys,  etc.,  in  said  city  at  least  once  a  week,  Broadway  once  every  twenty- 
four  hours,  and  certain  other  streets  twice  a  week,  for  the  term  of  five  years,  and  immedi- 
ately to  remove  the  sweepings.  The  defendant  corporation  co:;  tended  that  the  contract  was 
not  assignable.  Said  the  court,  per  Allen,  J.  (p.  15):  "An  assignment  by  the  contractor  of 
the  amounts  which  would  have  become  due  from  the  city  from  time  to  time  made  before  the 
doing  of  the  work  or  the  performance  of  the  conditions  upon  which  the  payments  depended, 
would,  under  the  liberal  rule  permitting  the  assignment  of  choses  in  action  now  prevailing, 
be  valid.  Expectancies,  as  well  as  existing  rights  of  action,  maybe  assigned,  and  the  rights 
of  the  assignees  will  be  protected  and  enforced  at  law.  Field  v.  Mayor,  etc.,  2  Seld.  179;  Hall 
V.  Buffalo,  2  Abb.  Ct.  of  App.  Dec.  301.  An  assignment  may  include  all  contingent  and  inci- 
dental benefits  or  results  of  an  executory  contract,  as  well  as  the  direct  fruits  or  earnings 
under  it,  and  thus  entitle  the  assignee  to  the  damages  resulting  from  a  violation  of  its  terms- 
The  right  of  action  for  a  breach  of  the  contract,  resulting  in  pecuniary  loss  to  the  contractor, 
would  survive  to  the  personal  representatives  of  the  aggrieved  party,  and  that  is  one  test  of 
the  assignability  of  contracts  and  choses  in  action.     Byxbie  v.  JVood,  24  N.  Y.  607;  McKee  v. 


398  IN  whose;  name  the  action  should  be  brought. 

Judd,  2  Kern.  622;  Zabriskie  v.  Smith,  3  id.  322.  In  principle  it  would  not  impair  the  rights 
of  the  assignee,  or  destroy  the  assignable  quality  of  the  contract  or  claim,  that  the  assignee, 
as  between  himself  and  the  assignor,  has  assumed  some  duty  in  performing  the  conditions 
precedent  to  a  perfected  cause  of  action,  or  is  made  the  agent  or  substitute  of  the  assignor 
in  the  performance  of  the  contract.  If  the  service  to  be  rendered  or  the  condition  to  be  per- 
formed is  not  necessarily  personal,  and  such  as  can  only  with  due  regard  to  the  intent  of  the 
parties,  and  the  rights  of  the  adverse  party,  be  rendered  or  performed  by  the  original  con- 
tracting party,  and  the  latter  has  not  disqualified  himself  from  the  performance  of  the  con- 
tract, the  mere  fact  that  the  individual  representing  and  acting  for  him  is  the  assignee,  and 
not  the  mere  agent  or  servant,  will  not  operate  as  a  recission  of,  or  constitute  a  cause  for 
terminating  the  contract.  Whether  the  agent  for  performing  the  contract  acts  under  a 
naked  power,  or  a  power  coupled  with  an  interest,  can  not  affect  the  character  or  vary  the 
effect  of  the  delegation  of  power  by  the  original  contractor.  Hackley,  the  original  con- 
tractor, was  at  no  time  discharged  from  his  obligations  to  the  city,  nor  was  he  disqualified 
for  the  performance  of  the  contract;  but  was  at  all  times  in  a  position  to  perform  his  part  of 
this  agreement,  facts  which  distinguish  t  riis  case  from  Stevens  v.  Benning,  6  De  G.,  M.  &  G., 
223,  and  Robson  v.  Drumtnond,  2  Bam.  &  Ad.  303." 

See  also  New  England  Iron  Co.  v.  Gilbert  Elevated  R.  R.  (1883),  gi  N.  Y.  153,  167;  Rochester 
Lantern  Co.  v.  Stiles  &  Parker  Press  Co.  (1892),  135  N.  Y.  209,  216;  York  v.  Conde,  (1895),  147 
N.  Y.  4S6;  Day  v.  Vinson,  ( )  78  Wis.  19S;  Mitchell  v.  Taylor  (1895),  27  Ore.  m.—Ed. 


^*'':^ 

y^ 


PURPLK  V.  HUDSON  RIVER  RAILROAD  COMPANY.  399 

2.   A7no7ig  rights  in  tort. 
PURPIvE  V.  HUDSON  RIVER  RAILROAD  COMPANY. 

Superior  Court  of  the  City  of  New  York,  General  Term,        ^        « 
October  io,  1854.  vVir>  ' 

[4  Ducr.  74.]  ^         ^         , 

Appeal  from  a  judgment  for  the  defendants  upon  a  demurrer  to  the  ^       ^^ . 
complaint.  ^'     J^ 

The  complaint  was  in  these  words  : —  f 

The  plaintiff  complains  of  the  defendants,  and  shows  to  the  court  that  the 
defendants  are  a  body  corporate,  duly  incorporated  under  the  laws  of  the  State 
of  New  York,  and  keeping  an  office  for  the  transaction  of  business  within  the 
city  of  New  York,  and  were  engaged  in  the  transportation  of  passengers  in  cars, 
upon  a  railroad  running  from  the  village  of  Greenbush  to  Chambers  street,  in 
the  city  of  New  York.  And  at  the  times  hereinafter  mentioned,  owned  said 
railroad  and  the  cars  running  thereon,  and  had  owned  and  employed  steam 
engines  to  draw  said  cars  to  31st  street  in  said  city,  and  horses  to  draw  said 
cars  from  31st  street  to  Chambers  street  aforesaid,  and  had  and  employed  agents 
and  servants  to  manage  and  conduct  the  said  cars  and  the  drawing  the  same  as 
aforesaid. 

And  this  plaintiff  further  avers,  that  Minerva  Purple  did,  on  the  17th  day  of 
August,  1S53,  take  passage  in  a  train  of  cars  so  run  by  said  defendants,  to  be 
carried  from  Greenbush  to  Canal  street,  in  the  city  of  New  York,  which  is  one 
of  the  usual  intermediate  stopping  places  of  said  train,  and  paid  to  said  defend- 
ants the  fare  charged  by  them  for  such  transportation  ;  and  the  said  defendants, 
in  consideration  thereof,  then  undertook  to  carry  the  said  Minerva  Purple  to 
Canal  street  aforesaid,  in  their  said  cars,  and  there  to  land  her.  And  the  plain- 
tiff further  avers,  that  the  said  defendant  did  not  land  the  said  Minerva  Purple 
at  Canal  street  aforesaid,  in  compliance  with  their  said  contract  and  agreement, 
in  a  proper  and  reasonable  manner,  or  otherwise  than  is  hereinafter  set  forth. 

And  this  plaintiff  further  avers,  that  in  the  course  of  such  transportation,  the 
said  Minerva  Purple  being  in  the  proper  place,  and  in  the  car  in  which  she  was 
directed   to   be  by  the  agents  of  said  defendants,  and  while  landing  at  Canal 

1  "  Blackstone  seems  to  have  entertained  the  opinion  that  the  ternic/iojs,  or  thing,  in  action 
only  inchided  debts  da  ■,  cr  damages  recoverable  for  the  breach  of  a  contract,  express  or  im- 
plied (2  Com.  38S,  396-7).  But  this  definition  is  too  limited.  The  term  chose  in  action  is 
used  in  contradistinction  to  chose  in /o.r5^M/o«.  It  includes  all  risrhts  to  personal  property 
not  in  possession  which  may  be  enforced  by  action;  and  it  makes  no  difference  whetlier  the 
owner  has  been  deprived  of  his  property  by  the  tortious  act  of  another,  or  by  his  breach  of 
a  contract,  expressed  or  implied.  In  both  cases,  the  debt  or  damages  of  the  owner  is  a 
'thing  in  action.''" — Per  Bronson,  Ch.  J.,  in  Gillet  v.  Fairchild  (1847),  4  Denio,  80,  82, 
citing  2  Kent,  351;  i  Chit.  G.  P.  99,  note  p;  Tomlin's  L.  D.,  "Chose";  The  King  v.  Copper,  5 
Price,  217;  I  Lilly,  Ab.  378. 

See  also,  10  Law  Quarterly  Rev.  143  (1894),  where  Mr.  Cyprian  Williams,  examining  the 
historj-  of  the  term  in  English  law,  reaches  the  conclusion  "  that  there  is  good  reason  and 
respectable  authority,  besides  ihat  of  Teiinesde  la  Ley  and  BlounC s  Lazu  Dictionary,  for  not 
limiting  the  term  chose  in  action,  even  at  the  present  day,  so  as  to  exclude  a  right  of  action 
in  tort" — for  torts  to  the  person  or  representative  as  well  as  for  torts  affecting  property. 
Contra,  Sir  Howard  Elphinstone,  in  9  Laxu  Quarterly  Rev.  311  (1S93). — Ed. 


400  JN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

Street  In  a  proper  manner,  and  in  pursuance  of  the  directions  of  said  defendants' 
agents  and  servants,  was  violently  thrown  from  said  car  into  the  street,  upon  the 
pavement  ;  that  said  car  started  suddenly  ahead  while  said  Minerva  Purple  was 
landing  therefrom,  and  before  a  proper  and  reasonable  time  had  been  allowed 
her  to  land,  by  which  start  she  was  thrown  as  above  mentioned.  And  he  fur- 
ther avers,  that  her  being  thrown  as  above  mentioned,  was  caused  wholly  by  the 
negligent,  careless,  and  unskilful  conduct  of  the  servants  and  agents  of  said 
defendants,  and  without  any  faul*^  or  negligence  on  the  part  of  said  Minerva 
Purple. 

And  the  plaintiif  further  avers,  that  the  said  Minerva  Purple  was  seriously 
injured  by  being  thrown  as  aforesaid  ;  that  her  thigh-bone,  at  or  near  the  neck, 
was  thereby  broken  and  will  never  unite,  so  as  to  render  the  same  serviceable  ; 
that  she  suffered  great  pain  in  consequence  thereof,  and  was  confined  to  her  bed 
nine  weeks,  and  is  still  unable  to  walk  or  use  her  left  leg,  and  has  been  obliged 
to  procure  medical  attendance  and  nursing,  and  to  expend  large  sums  of  money, 
and  that  she  was  thereby,  in  other  respects,  severely  bruised  and  injured  in  her 
body,  and  greatly  alarmed  in  mind. 

And  the  plaintiff  further  avers,  that  the  said  Minerva  Purple  has  heretofore 
by  assignments,  duly  executed,  under  her  seal,  and  for  good  and  valuable  con- 
sideration, assigned  to  the  said  plaintiff  all  her  claim,  demand,  and  cause  of 
action  against  the  defendants,  by  reason  of  the  premises,  and  that  he  is  now  the 
lawful  holder  and  owner  thereof.     Wherefore,  &c. 

To  this  complaint  the  defendants  demurred,  upon  the  following- 
grounds  : 

1.  That  it  appears  from  said  complaint  that  there  is  a  defect  of  parties  to  the 
action,  in  that  Minerva  Purple  ought  to  be  the  plaintiff  therein,  in  the  stead  of 
the  said  Samuel  S.  Purple,  the  latter  not  appearing  from  the  complaint  to  have 
any  valid  cause  of  action  against  these  defendants. 

2.  That  the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action  in  the  plaintiff  against  the  defendants,  in  that  the  alleged  claim,  demand, 
and  cause  of  action  of  the  said  Minerva  Purple,  are  not  the  legal  subject  of  an 
assignment  by  her  to  the  plaintiff.' 

G.  I.  Belts,  for  the  plaintiff. 
W.  Fullerton,  contra. 

By  the  Cojirt.  Duer,  J. — It  is  evident  upon  reading  this  complaint, 
that  the  injuries  to  the  person  of  M.  Purple,  as  caused  b}-  the  negli- 
gence of  the  servants  of  the  defendants,  are  the  gravafnen,  for  which 
the  damages  claimed  are  sought  to  be  recovered. 

The  contract  with  the  company  is  stated  merely  by  way  of  induce- 
ment, as  giving  a  more  aggravated  character  to  the  negligence  charged. 

That  a  right  of  action  for  injuries  to  the  person  does  not  sur\dve  to 

an  executor,  is  quite  certain,   and  we  ageee  with  Mr.  Justice  Paige, 

Hoytv.  Thompson,  [185 1]  i   Selden,  347,  that  we  find  here  the  proper 

^        test  of  the  assignability  of  a  chose  in  action.     It  maybe  assigned  if  it 

'        would  sur\'ive,  and  not  otherwise 

* 

1  The  opinion  of  Mr.  Justice  Hoffman,  at  Special  Term,  allowing  the  demurrer,  is 
omitted. 


PURPLE  7'.   Hl'DSON  RIVKR  RAILROAD  COMPANY.  401 

It  seems  to  be  the  opinion,  from  the  cases  brought  before  us,  oi  many 
members  of  the  profession,  that  the  Code  has  abolished  the  distinctions 
that  fonnerly  prevailed,  and  that  every  right  of  action,  no  matter  from 
what  cause  it  may  arise,  is  now  assignable,  so  as  to  enable  the  assignee 
to  maintain  the  action  in  his  own  name,  in  all  cases  whatever ;  but 
this  is  certainly  an  error,  and  is  the  very  error  which  the  addition  made 
to  {}  III  of  the  Code,  in  the  amendments  of  1851,  was  designed  to  correct. 
The  only  alteration  made  by  the  Code,  is  to  enable  the  assigncejLo-aiain- 
tain  the  action  in  his  own  iianic,  in  those  cases,  and__in.ihflS£-jQnli:«.  in 
which,  by  the  law,  as  it  existed  when  the  Code  was  adopted,  the  right 
^  action  Was  assignable  in  law  or  in  equity.  The  common  law  offences 
ol  chainpyrty  Uhd  nuuntenance  are  not  wholly  obsolete. 

On  the  other  hand,  as  the  Code  has  not  enlarged ,  neither  has  it  restricted, 
the  power  of  assignment ;  for  we  wholly  dissent  from  the  construction 
that  some  judges  seem  disposed  to  give  to  §  iii  as  amended  in  1851, 
namely,  that  it  is  limited  to  demands  arising  out  of  contract,  and  forbids 
by  implication  the  assignment  of  any  founded  on  a  tort.' 

"We  hold,  that  every  demand  that  is  connected  with  a  right  in  property,  \ 
real  or  personal,  and  which  claims  redress  for  a  violation  of  the  right, 
is  assignable,  whether  the  violation  is,  technically  speaking,  a  tort,  or 
simply  a  breach  of  contract.  And  we  think  that  this  rule  is  a  legitimate, 
if  not  a  necessary  deduction  from  the  opinion  of  the  Supreme  Court  as 
delivered  by  Cowen,  J.,  in  the  case  of  the  People  v.  Tioga  Common 
Pleas,  19  Wend.  73.  The  rule  thus  stated  excludes  only  those  torts 
that  are  so  strictly  personal  that  they  die  with  the  person,  and  it  corre- 
sponds exactly  with  the  views  of  ISIr.  Justice  Paige  in  Hoytv.  Thompson, 

The  demurrer  in  the  case  before  us,  as  the  cause  of  action  stated   in 
the  complaint  is  for  a  tort  strictly  personal,  is  well  taken,  and  the  judg-/ 
ment  appealed  from  is  therefore  afi&rmed  with  costs. ^ 

1  Compare,  Snyder  v.  IVabash  Ry.  (1885),  86  Mo.  613,  619,  with  Kansas  Midland  Ry.  v. 
Brehm  (1S95),  54  Kan.  751,  ^^(i.—Ed 

2  Accord,  (no  statute  affectinR  the  assignability  of  the  chose);  Hodgman  v.  The  Western 
R.  R.  (1852),  7  How.  Pr.  492.  Stone  v.  Boston  R.  R.  (1S56),  7  Gray,  539.  Brooks  v.  Hanfotd, 
<i859).  15  Abb.  Pr.  342:  "  The  rendering  of  the  verdict  did  not  alter  the  nature  of  the  claim. 
It  liquidated  the  amount  of  the  damages  which  the  plaintiff  was  to  recover,  but  the  claim 
remained  the  same.  The  verdict  was  but  a  stage  in  the  progress  of  the  cause,  and  there 
was  no  debt  or  claim  which  would  pass  by  assignment  until  the  judgment  was  perfected."— 
Per  Brown,  J. 

So  also,  Lawrence  v.  Martin  (1S63),  22  Cal.  174;  Hunt  v.  Conrad  (1891),  47  Minn.  557  (dis- 
tinguished in  Kent  v.  Chapel  (1897),  67  Minn.  420,  422,  on  the  ground  that  a  Minnesota  statute 
changing  the  common  law  rule  as  to  assignability  had  been  overlooked). 

See  also,  Puher  v.  Harris  (1S73),  52  N.  Y.  73  {2,  judgment  in  an  action  for  assault  and  bat- 
tery was  assigned,  but  afterwards  reversed  upon  appeal,  and  a  new  trial  granted.  Before 
the  new  trial,  the  plaintiff  released  the  defendant;  but  the  assignee  of  the  judgment  (attor- 
ney for  the  plaintiff  in  the  origir.al  suit)  undertook  to  go  on  with  the  action.  Held,  that  the 
original  cause  of  action  was  not  assignable;  and  that  while  the  judgment  was  assignable, 
its  reversal  left  the  assignment  "entirely  inoperative  so  far  as  the  defendant's  rights  were 
concerned." — Ed. 


402  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


BUTLER    z'.  THE    NEW  YORK    AND    ERIE     RAILROAD    COM- 
PANY. 

Supreme  Court  op  New  York,  General  Term,  July,    1856. 

[22  Barb,  no.] 

This  action  was  commenced  in  a  justice's  court,  and  the  plaintifif's 
complaint  was  as  follows  : 

"  The  plaintiff  complains  of  the  defendants  for  that  on  or  about  the  21st 
March,  1853,  at  Union,  in  said  county,  defendants  by  their  cars  and  engines 
carelessly  and  negligently  ran  over  and  killed  one  yoke  of  oxen  the  property  of 
one  David  C.  Warner,  of  the  value  of  $100,  which  claim  has  been  assigned  and 
belongs  to  the  plaintiff,  and  for  which  he  claims  judgment  to  $100. " 

The  defendants  denied  the  complaint. 

James  H.  Christopher  testified  upon  the  trial  that  he  purchased  this 
claim  of  Warner  and  sold  the  same  to  the  plaintiff.  David  C.  Warner 
testified  that  he  owned  the  oxen  at  the  time  of  the  collision,  and  sold 
them  to  Christopher  after  they  were  killed.  The  plaintifFgave  evidence 
showing  that  the  oxen  were  killed  by  one  of  the  defendants '  engines  run- 
ning over  them,  and  tending  to  show  that  they  were  killed  by  the  neg- 
ligence of  the  defendants'  servants  ;  and  the  justice  rendered  judgment 
for  the  plaintiif  for  $100  damages  and  $5  costs.     .     . 

The  defendants  appealed  to  the  Broome  county  court,  where  the 
judgment  was  affirmed.  The  defendants  then  appealed  to  this  court. 
There  was  no  demand  made  of  the  defendants  by  the  plaintiff  for  these 
oxen,  or  otherwise. 

LaGra?ige  &  Talbert,  for  the  plaintiff. 

Jacob  Morris,  for  the  defendants. 

By  the  Court,  Mason,  J. — The  first  question  which  I  propose  to  con- 
sider in  this  case  is,  whether  the  plaintiff,  as  assignee  of  this  cause  of 
action,  was  entitled  to  recover  those  damages  in  this  action.  At  com- 
mon law  a  right  of  action  for  injuries  to  the  person  or  character  was  not 
assignable.'  These  are  mere  personal  torts  and  die  with  the  party,  and 
are  not  assignable.  Such  are  actions  of  slander,  libel,  assault  and  bat- 
tery, false  imprisonment,  crim.  con.,  seduction,  &c.  On  the  other 
hand,  where  the  injury  affects  the  estate  rather  than  the  person,  where 
the  action  is  brought  for  damage  to  the  estate  and  not  for  injury  to  the 
person,  personal  feelings,  or  character,  the  right  of  action  could  be 
bought  and  sold  at  common  law.  Such  a  right  of  action,  upon  the 
death,  bankruptc5%  or  insolvency  of  the  party  injured,  passes  to  the 
executor  or  assignee  as  part  of  his  assets,  because  it  affects  his  estate 

1  Citing,  The  People  v.  Tioga  Common  Pleas  (1837),  19  Wend.  73;  Hodgman  v.  Western 
Railroad  (1852),  7  How.  Pr.  492. 


BUTLER  :■.   THK  NEW  YORK  AND  KRIF.  RAILROAD  CO.  4U3 

and  not  his  personal  rights.'  Mere  matters  in  action,  however,  were 
not  so  far  transferable  at  common  law  as  to  pass  the  legal  title,  unless 
we  except  certain  commercial  instruments.  The  equitable  title  only 
passed,  but  when  assigned  with  notice  to  the  person  from  whom  the 
liability  is  due,  courts  of  law  would  protect  the  assignee  against  all 
prejudice  from  the  acts  of  the  assignor.  The  People  v.  Tioga  Common 
Pleas,  19  Wend.  73,  75.  The  action,  however,  had  to  be  enforced  in  the 
name  of  the  original  party. 

The  1 1  ith  section  of  the  code  adopts  the  equity  and  not  the  legal  rule 
in  regard  to  parties.  It  requires  that  every  action  must  be  prosecuted 
in  the  name  of  the  real  party  in  interest ;  but  by  an  amendment  of  this 
section,  in  1851,  it  is  declared  "  that  this  section  shall  not  be  deemed  to 
authorize  the  assignment  of  a  thing  in  action  not  arising  out  of  con- 
tract."  Before  this  section  was  amended  in  1851,  by  adding  the  above 
restriction,  it  was  held  that  in  the  class  of  cases  where  the  right  of 
action  for  a  tort  aiTected  the  property  of  the  party,  the  right  of  action 
was  assignable,  so  as  to  enable  the  assignee,  under  .section  1 1 1  of  the 
code,  to  sue  in  his  own  name.^  This  amendment  to  section  1 1 1  has  been 
supposed  by  some  as  intended  to  restrict  this  right,  and  to  establish  the 
general  principle  that  nothing  but  a  cause  of  action  growing  out  of  con- 
tract could  be  assigned,  so  as  to  give  the  assignee  such  an  interest  as 
would  enable  him  to  enforce  his  demand  by  civil  action. 

I  do  not  see  how  any  such  construction  can  be  given  to  this  amend- 
ment. It  is  true,  it  does  not  authorize  the  assignment  of  a  thing  in 
action  not  arising  out  of  contract.  Nor  does  it  forbid  such  assignment. 
The  right  rests  upon  precisely  the  same  footing  it  did  before,  and 
an  assignee  takes  precisely  the  same  interest  in  the  assignment  of 
everj^  species  of  demand,  either  at  law  or  in  equity,  as  he  did  before  the 
code.  It  follows,  therefore,  that  if  the  demand  was  such  as  was  capable 
of  assignment  before  the  code,  so  as  to  carry  an  equitable  interest  to  the 
assignee,  it  is  such  a  demand  as  will  now  pass  by  assignment,  so  as  to 
give  the  assignee  a  right  of  action  therein.^ 

1  Citing,  The  People  v.  Tioga  Common  Pleas  (1837),  19  Wend.  73;  i  Chitty's  PI.  68;  Cham- 
berlain V.  Williamson  (1814),  2  Maule  &  Sel.  408;  North  v.  Turner  (1823),  9  Serg.  &  Rawle, 
244;  Robinson  v.  Weeks  (1851),  6  How.  Pr.  161;  Comegys  v.  Vasse  (1S28),  i  Peters',  193,  213; 
Hodgman  v.  Western  R.  R.  (1852),  7  How.  Pr.  492;  Hoyt  v.  Thompson  {1851),  i  Seld.  347. 

2  Citing,  Robinson  v.  Weeks,  6  H  w.  Pr.  R.  61;  Hodgman  v.  Western  R.  R.,  7  id.  492;  Hall 
V.  Robinson,  2  Comst.  293;  Hoyt  v.  Thompson,  i  Seld.  347. 

3  Accord  (as  to  the  effect  of  the  provision  that  "this  section  shall  not  be  deemed  to  author- 
ize the  assignment  of  a  thing  in  action  not  arising  out  of  contract"):  McArthurv.  Green 
Bay  Canal  Co.  (1S74),  34  Wis.  139,  153;  Snyder  v.  IVabash  Ry.  (1S85),  86  Mo.  613,  619:  "In  view 
of  what  has  been  said,  we  must  hold  that  the  proviso  added  by  way  of  amendment  in  1855 '  o 
section  3462  [as  quoted  above]  neither  forbade  the  assignment  of  causes  of  action  arising  in 
tort,  for  such  injuries  to  property  as  survived  to  the  personal  representative,  nor  authorized 
the  assignment  of  such  causes  of  action  arising  in  tort  as  did  not  survive  to  such  representa- 
tive but  died  with  the  p  rson,  and  that  in  so  far  as  the  opinion  in  Wellen  v.  The  St.  Louis, 
Iron  Mountain  &  Southern  Ry.,  74  Mo.  521,  conflicts  with  what  is  here  said,  it  is  overruled.'' 
—Per  Norton,  J.     Dissent  by  Henry,  C.  J. 

Contra:  Kansas  Midland  Ry.  v.  Brehin,  (1895),  54  Kan.  751,  756:  "  Evidently  this  provision 
[as  quoted  above]  recognizes  the  limitation  which  existed  at  common  law  when  the  code  was 


404  IN  WHOSE  NAMU  the;  action  should  be  brought. 

If  I  am  right  in  the  views  above  expressed,  it  follows  that  mere 
personal  torts,  which  die  with  the  person,  such  as  slander,  assault  and 
battery,  false  imprisonment,  crim.  con.,  seduction,  and  the  like,  are  not 
assignable;  but  torts  for  taking  and  converting  personal  property,  or  for 
injury  to  personal  property  ;  and  it  seems  generally  all  such  rights  of 
action  for  a  tort  as  would  survive  to  the  personal  representatives  of  the 
party,  may  be  assigned  so  as  to  pass  an  interest  to  the  assignee,  which 
he  can  assert  in  his  own  name  in  a  civil  action  under  the  code  as  he 
formerly  might  do  in  the  name  of  the  assignor  at  law. ' 

adopted,  and  inferentially  at  least,  provides  that  a  chose  in  action  arising  out  of  a  pure  tort 
is  not  assignable." — Per  Johnston,  J.  The  action  was  to  recover  damages  caused  by  the 
negligent  escape  of  fire  from  a  locomotive.  So  also,  Atchison  R.  R.  v.  Kansas  Insurance 
Co.  (1898),  7  Kan.  App.  4AT.—Ed.   ' 

1  Citing,  contra,  Therman  v.  Wells,  (1S54),  i3  Barb.  500. 

The  judgment  of  the  justice  below  was  however  reversed  because  of  the  plaintiff's  failure 
to  give  a  proper  notice  of  the  intended  examination  of  Christopher. 


NOTE. — THE  ASSIGNABILITY  OF  A   TORT   TO   PROPERTY. 

In  McKee  v.Judd,  (1855),  13  N.  Y.  622,  Gardiner,  Ch.  J.,  delivering  the  majority  opinion, 
remarked:  "In  The  People  v.  Tioga  Common  Pleas  [1S37],  19  Wend.  73,  this  subject  was  dis- 
cussed by  Judge  Cowen  with  his  usual  learning  and  ability;  he  observes,  in  speaking  of 
choses  in  action:  '  That  for  the  purposes  of  any  sort  of  assignment,  legal  or  equitable,  I  can 
nowhere  find  that  the  term  has  ever  been  carried  beyond  a  claim  due  either  on  contract  or 
such  whereby  some  special  damage  has  arisen  to  the  estate  of  the  assignor."  And  his  con- 
clusion is  that  demands  arising  from  injuries,  strictly  personal,  whether  arising  upon  tort  or 
contract,  are  not  assignable,  but  that  all  others  are.  Upon  the  authority  and  reasoning  of 
that  case,  and  the  decisions  there  referred  t ),  the  law  may  be  considered  as  settled  that  a 
claim  to  damages  arising  from  the  wrongful  conversion  of  personal  property  is  a  chose  in 
action  that  is  assignable." 

Accord  also,  Merrill  v.  Grinnell  (1864),  30  N.  Y.  594,  614  (claim  to  recover  the  value  of  a 
trunk  and  its  contents  negligently  lost  by  a  common  carrier).  Fulton  Fire  Ins.  Co.  v.  Bald- 
win (1S6S),  37  N.  Y.  648  (claim  against  one  who  had  contracted  to  keep  a  canal  free  from  ob- 
structions and  had  negligently  permitted  it  to  be  obstructed).  Julian  v.  Hoosier  Drill  Co. 
(1881) ,  78  Ind.  40S  (claim  for  damages  for  infringing  a  trade  mark).  McArthur  v.  Green  Bay 
Canal  Co.  (1874),  34  Wis.  139,  152  (claim  for  damages  for  the  destruction  of  a  tug).  Gates  v. 
Northern  Pacific  R.  R.  (1SS5),  64  Wis.  64;  Lazard  v.  IVheeler  (1863),  22  Cal.  140  (claim  for 
damages  for  conversion  of  property) .  Dickson  v.  Merchants'  Elevator  Co.  (1S91 ),  44  Mo.  App. 
498,  505.  More  V.  Massini  (1S67),  32  Cal.  590  (claim  for  damages  for  trespass  on  land).  IVeb- 
ber  V.  Quaw  (1879),  46  Wis.  nS;  Chouteau  v.  Boughton  (1890),  100  Mo.  406, 410,  in  text,  ante,  p. 
256.  Snyder  v.  Wabash  Ry.  (iS85),86  Mo.  613  (claim  in  damages  for  loss  of  a  hog  killed 
upon  the  tracks  of  the  defendant  railway,  through  its  failure  to  maintain  fenc  s.) 

Norfolk  df  Western  R.  R.  v.  Read  [1890],  87  Va.  185  [trespass  on  the  case  against  a 
common  carrier  for  injury  to  goods  in  transit.]  Said  the  court,  per  I,acy,  J.  (p.  189): 
"  While  a  right  of  action  for  mere  per.sonal  torts,  such  as  assault  and  battery,  false  imprison- 
ment, malicious  prosecution,  defamation  and  deceit,  which  die  with  the  part5'  and  do  not 
survive  to  the  personal  representative,  can  not  be  assigned  (Comegys  v.  Vasse,  i  Pet.  213;  Burt 
V.  Baldwin,  30  Barb.  182;  Rice  ?'.  Stone,  i  Allen,  566;  Devlin  v.  Mayor.  63  N.  Y.  275;  Meech  v. 
Stoner,  10  N.  Y.  29;  Va.  Code  of  1S73,  Ch.  145,  gj  8,  9,  10)  a  right  of  action  to  recover  damages 
for  an  injury  to  property,  real  or  personal,  may,  however,  be  assigned.  Gillett  v.  Fair- 
child,  4  Denio,  So;  Hudson  v.  Plitt,  11  Paige,  180;  McBride  v.  Farmers  Bank,  26  N.  Y.  456; 
North  V.  Turner,  9  Serg.  &  R.  244;  I,anguid  v.  Wheeler,  22  Cal.  142. 

"And  it  may  be  said  generally  that  every  demand  connected  with  a  right  of  property,  real 
or  personal,  may  be  assigned,  and  it  seems  that  all  rights  of  action  which  would  survive  to 
the  personal  representative  may  be  assigned.  Butler  v.  N.  Y.  &  E.  R.  Co.,  22  Barb,  no;  Pat- 
ton  V.  Wilson,  34  Penn.  299;  Jordan  v.  Gillen,  44  N.  H.  424.  .  .  .  As  to  the  question  whether 
a  mere  right  ad  litem  for  unliquidated  damages,  founded  on  a  tort,  can  be  lawfully  assigned 


THE    ASSIGXAIULITY   OF   A   TORT   TO    PROPERTY.  405 

—'this  question,'  says  Nesmitii,  J.,  in  Jordan  v.  Gillen  (1S63),  supra,  '  has  recently  been  de- 
cided in  the  affirmative  in  New  York.  There  it  has  been  held  that  merely  personal  actions, 
which  die  with  the  person,  are  not  assignal)le;  but  torts  for  taking  and  converting  personal 
property,  or  for  injury  to  personal  property,  [are  assignable  | ;  and  it  seems  generally  that  all 
sucli  rights  of  action  for  a  tort  as  would  survive  to  the  personal  representatives,  may  he  as" 
signed,  so  as  to  pass  an  interest  to  an  assignee,  which  he  can  now  assert  under  the  code  in  a 
civil  action  in  his  own  name,  as  he  might  formerly  at  common  law  assert  in  the  name  of  his 
assignor.'  " 

It  is  to  be  observed,  however,  that  in  a  number  of  these  cases,  the  assignability  of  the 
claim  in  tort  is  expressly  put  upon  the  ground  that  it  would  survive  by  statute. 

"  On  the  question  whelher  the  assign  ibility  of  a  tort  must  not  always  depend  upon  the 
existence  of  a  statute,  permitting  it  directly  or  indirectly,  see  Oliver  v.  Walsh  (1856),  6  Cal. 
456,  and  compare  Pollock  on  Torts,  ca.  iii.  2,  (on  the  survivability  of  the  right  of  action  for 
a  tort),  and  Dicey  on  Parties,  429. 

See  aUo,  Clerk  and  Lindsell  on  Torts,  p.  46:  '  The  question  whether  a  right  of  action  for  a 
tort  is  assignable,  so  as  to  entitle  the  assign'-e  to  sue  in  his  own  name  is  one  which  apparently 
has  never  been  decided  [in  England],  though  presumably  Where  the  question  arises  it  will  be 
held  that  it  can  not  be  assigned.  No  doubt  bv  sec.  25  of  the  Judicature  Act,  1873,  'any  abso- 
lute assign:nent  by  writing  ...  of  any  debt  or  other  legal  chose  in  action  of  which  ex- 
press notice  in  writing  shall  have  been  given  to  the  debtor,  trustee,  or  other  person  from 
whom  the  assignor  would  have  been  entitled  to  receive  or  claim  such  debt  or  chose  in 
action,"  shall  be  effectual  to  transfer  the  legal  right  to  such  debt  or  chose  in  action.  But 
there  are  two  objections  in  the  way  of  holding  that  that  section  authorizes  the  legal  trans- 
fer of  a  right  of  action  in  tort.  In  the  first  place,  although  a  right  of  action  in  tort  is  a 
chose  in  action  in  the  widest  sense  of  that  term,  it  may  be  doubted  whether  it  is  a  chose  in. 
action  within  the  meaning  of  the  section.  The  words  'or  other  legal  chose  in  action  '  seem 
to  point  to  something  ejitsdem  generis  with  debts,  i.  e.,  causes  of  action  arising  out  of  con- 
tracts. And  secondly,  the  Judicature  Act  is  a  mere  statute  of  procedure;  it  was  not  intended 
to  affect  the  rights  of  parties.  The  section  can  not  be  regarded  as  making  that  assignable 
in  law  which  was  not  a.ssignable  in  equity  before,  but  only  as  enabling  an  assignee  to  sue  in 
his  own  name  in  cases  in  which  before  the  Act  he  'could  have  sued  in  the  name  of  his 
assignor.  But  there  seems  to  be  no  reported  cast-  in  this  country  in  which  it  has  ever  been 
held  that  an  assignee  of  a  right  of  action  in  tort  can  sue  in  the  name  of  his  assignor.  It  is 
true  that  in  the  case  of  Cohen  v.  Mitchell,  25  Q.  B.  D.  262,  where  a  cause  of  action  forthecon- 
version  of  goods  was  assigned,  and  the  action  was  carried  on  in  the  name  of  the  assignor, 
the  judgment  of  the  Court  of  Appeal  involved  the  assumption  that  the  assignment  was 
good,  but  the  point  was  not  argued,  and  no  decision  was  given  upon  it.  In  Williams  v. 
Protheroe,  5  Bing.  309,  the  court  are  reported  to  have  said  that  there  is  no  objection  to  the 
validity  of  an  agreement  by  the  vendor  of  an  estate  that  the  purchaser  should  be  entitled  to 
sue  in  the  vendor's  name  for  '  injuries  done  to  it  previously  to  the  purchase;'  but  on  refer- 
ence to  the  facts  of  the  case,  it  appears  that  the  action  to  which  the  agreement  related 
was  an  action  against  a  tenant  for  dilapidations  arising  from  non-repair,  which  was  a  mere 
breach  of  contract,  and  actions  upon  contracts  have  always  been  assignable  in  equity.  That 
case  is  no  authority  for  saying  that  a  cause  of  action  for  active  injury  would  be  assignable. 
In  Ds  Hoghton  v.  Money,  1,.  R.,  2  Ch.  164,  Turner,  I,.  J.,  said,  that  'a  right  to  complain  of  a 
Iraud  is  not  a  marketable  commodity,'  and  the  same  view  had  been  expressed  by  L,ord  Abin- 
ger  in  Prosser  v.  Edmonds,  i  Y.  &  C.  481.  But  if  a  right  of  action  for  fraud  is  not  assignable, 
then  neither  ought  a  right  of  action  for  any  other  tort  to  be  so. 

"  There  seems,  indeed,  to  be  no  valid  reason  in  principle  for  any  distinction  as  regards 
their  assignability  between  rights  of  action  for  torts  to  property,  and  rights  of  action  for 
torts  to  the  person  or  reputation.  The  reason  given  by  L,ord  Abinger  in  Howard  v.  Cro-u- 
ther,  8  M.  &  'W.  601,  for  holding  that  actions  for  torts  of  the  latter  class  do  not  pass  to  trus- 
tees in  bankruptcy,  while  those  for  torts  of  the  former  class  do,  namely,  that  in  actions 
of  the  latter  cla'-s  the  trustees  would  get  no  sufficient  damages,  has  no  application  tothccase 
of  assignment  of  such  rights  of  action  by  a  solvent  assignor.  In  the  case  of  bankruptcy  it 
would  be  unjust  for  the  law  10  compulsorily  deprive  theinjured  person  of  a  substantial  claim 
for  damages,  unless  by  so  doing  it  conferred  a  corresponding  benefit  upon  the  creditors;  but 
in  the  case  of  a  voluntary  assignment  by  the  injured  person,  the  fact  that  the  assignee  will 
get  hut  little  damages,  though  it  may  present  a  formidable  difficulty  in  the  way  of  finding  a 
purcha.ser,  can  afford  no  good  reason  why  the  injured  per.son  should  not  sell  his  cause  of 
actio;i  for  what  it  will  fetch  if  he  likes.  And  yet  if  a  right  of  action  for  a  purely  personal 
tort  were  assignable,  this  strange  result  would  follow,  that  the  assignee  would  have  only  a 
cause  of  action  determinable  upon  the  death  of  another  person  by  reason  of  the  maxim  actio 


406  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

personalis  moriiur  cum  persona.  But  such  a  limitation  has  never  been  heard  of.  It  is  appre- 
hended that  actions  for  purely  personal  torts  are  not  assignable,  and  that,  if  they  are  not, 
neither  are  the  actions  for  torts  to  property,  even  though  they  purport  to  be  assigned  along 
with  the  injured  property  itself.  If,  as  seems  to  be  the  prevailing  view,  the  ground  of  the 
old  rule  that  choses  in  action  are  not  assignable  is  that  the  assignment  is  open  to  the  objec- 
tion of  being  champertous,  that  is  an  objection  which  applies  as  well  to  torts  of  the  one  kind 
;  s  to  torts  of  the  other. 

"Assuming,  however,  that  rights  of  action  in  tort  are  in  general  not  assignable,  there  are 
two  exceptions  to  that  rule:  first,  a  chose  in  action  may  be  assigned  to  the  Crown;  and,  sec- 
ondly, rights  of  action  of  any  kind  which  pass  to  a  trustee  in  bankruptcy  (including  rights 
of  actions  for  torts  to  the  debtor's  property)  are,  it  appears,  assignable  by  the  trustee  to  a 
stran«^er.  But  as  the  objection  to  the  purchase  of  a  cause  of  action  on  the  score  of  champerty 
must  be  who'.ly  independent  of  the  character  of  the  vendor,  this  case  may  be  difiacult  to 
reconcile  with  other  authorities.  "—£'(i. 


ZAI!RISKli;    AND    OTIIHKS    :\    SMITH,  407 

ZABRKSKI1-:   AND  oTIIKRvS  v.   SMITH. 

Court  of  Ai*i'i:als  of  New  York,  December,   1855. 

[13  N.    v.  322.] 

Appeal  from  a  judgment  of  the  superior  court  of  the  city  of  New 
York.     The  action  was  commenced  in  November,  1852. 

The  plaintiffs,  Zabriskie,  Bucklej^  and  Hunter,  in  their  complaint, 
stated  that  in  the  year  1S48  they  and  one  Gray  were  co-partners,  as  dry 
goods  jobbers,  in  the  city  of  New  York,  under  the  firm  name  of  John 
A.  C.  Gray  &  Co.,  and  that  as  such  co-partners,  they  in  that  year  sold 
to  one  Walter  H.  Smith  goods  to  the  amount  of  $3,350.20,  at  different 
times  ;  that  the  defendant  wrongfully  and  deceitfully  encouraged  and 
persuaded  the  firm  to  sell  and  deliver  the  goods  to  said  W.  H.  Smith, 
on  credit  ;  that  in  order  to  induce  them  to  do  so,  the  defendant,  in 
April,  1848,  sent  a  message  to  the  firm  by  one  -'  ayre,  to  the  effect  that 
he,  the  defendant,  had  examined  into  the  affairs  of  Walter  H.  Smith, 
and  that  he  thought  that  what  the  firm  should  sell  to  said  Walter  would 
be  all  right,  and  if  anything  did  happen,  they  would  be  taken  care  of; 
that  he,  the  defendant,  had  talked  with  W.  H.  Smith,  and  was  satis- 
fied that  he  was  solvent  and  that  he  was  going  on  well  ;  that  the  mes- 
sage was  delivered  by  Sayre  before  the  sale  of  any  of  the  goods  ;  and 
that  the  firm  relying  on  its  truth  and  honest}',  in  consequence  thereof, 
were  induced  and  wrongfully  persuaded  to  sell  and  deliver  the  goods  to 
W.  H.  Smith,  on  credit;  whereas  the  plaintiffs  allege  that  the  message 
was  false  and  deceitful,  and  that  the  defendant  had  not  examined  the 
affairs  of  Smith,  and  v,  as  not  satisfied  that  he  was  going  on  well  or  was 
solvent ;  but  Smith  was  then  and  has  been  ever  since  insolvent,  and 
the  defendant  was  unacquainted  with  his  affairs,  except  to  know  that 
he  was  largely  in  debt ;  and  the  defendant  himself  then  had  a  claim  on 
hirafor  $2,500,  and  was,  besides,  his  endorser  for  $1,500  on  a  note  held 
by  a  bank  ;  and  W.  II.  Smith  had  informed  the  defendant  that  he  could 
go  on  in  businCvSS  if  and  on  condition  that  the  defendant  would  have 
the  note  renewed  and  continued  at  the  bank  ;  which  fact,  at  the  time 
the  defendant  sent  the  message  aforesaid,  he  fraudulently  and  wrong- 
fully suppressed  and  withheld  from  the  said  firm  ;  therefore  the  plain- 
tiffs say  that  the  defendant  falsely  represented  the  credit  of  Smith. 

They  further  allege  that  they  would  not  have  trustedSmith  with  the 
goods,  except  in  consequence  of  the  message  ;  that  the  defendant 
knew  that  the  message  would  induce  the  firm  to  sell  Smith  the 
goods  on  credit,  when  he  was  not  a  person  safely  to  be  trusted.  They 
further  allege  that  in  January,  1849,  Smith,  failed  and  made  an  assign- 
ment to  a  .son  of  the  defendant,  in  '.vhich  he  preferred  the  defendant  for 
the  above  mentioned  $4, 000,  which  was  paid  by  the  assignees  out  of  the 


408  IN  WHOSE  NA-AIE  THE  ACTION  SHOULD  BE  BROUGHT. 

propert)^  thus  assigned,  a  portion  of  which  was  the  goods  which  the 
firm  had  sold  Smith  ;  that  the  firm  by  means  of  said  message  and  the 
wrong  conduct  of  the  defendant,  have  been  deceived  and  defrauded  to 
the  amount  of  the  goods  sold,  except  as  to  $500  which  had  been  paid 
on  account.  They  further  set  forth  that  Gra}^  retired  from  the  firm 
prior  to  the  commencement  of  the  suit,  and  had  assigned  to  Zabriskie, 
a  co-partner  and  one  of  the  plaintiffs,  all  his  right,  share  and  interest 
in  the  goods  so  sold,  and  all  claims  and  right  of  action  against  the 
defendant  in  respect  to  the  premises. 

The  answer  admitted  sending  a  message  to  the  firm  by  Sayre,  some- 
what different  in  its  terms  from  the  one  set  out  in  the  complaint,  and 
admitted  some  of  the  other  facts  stated  and  denied  others,  and  denied 
all  fraud.  It  admitted  that  Gray  had  retired  from  the  firm  before  the 
commencement  of  the  action,  but  denied  that  he  had  assigned  to 
Zabriskie  his  interest  in  the  goods  sold  Smith  or  the  claim  in  suit.  It 
insisted  that  Gray  was,  at  the  time  of  the  commencement  of  the  action, 
a  part  owner  of  the  demand  sued  on,  and  should  have  been  made  a 
party,  and  prays  that  the  complaint  should  be  dismissed  on  account  of 
his  not  being  joined. 

The  cause  was  tried  in  New  York,  in  June,  1S53,  before  Mr.  Justice 
Bosworth.  Verdict  for  the  plaintiff"  for  $3,413.86.  On  an  appeal  to  the 
general  term,  the  judgment  entered  on  the  verdict  was  affirmed,  where- 
upon the  defendant  brought  this  appeal. > 

William  Porter,  for  the  appellant. 

E.  L.  Fancher,  for  the  respondents. 

Denio,  J. — The  questions  of  law  arising  upon  this  appeal  appear  to  be 
the  following  :  i.  Whether  the  complaint  sets  forth  a  cause  of  action  ; 
2.  Whether  the  evidence  on  the  part  of  the  plaintiffs,  standing  uncon- 
tradicted, made  out  a  case  suitable  to  be  submitted  to  the  jury,  or 
whether,  on  the  contrary,  they  ought  to  have  been  nonsuited ;  3. 
Whether  the  sales  of  goods  made  by  the  plaintiffs  to  Walter  H.  Smith, 
subsequent  to  April,  1848,  were  so  far  out  of  the  influence  of  the  alleged 
false  representation  that  the  consideration  of  them  should  have  been 
taken  from  the  jury  ;  4.  Whether  the  interest  of  John  A.  C.  Gray  was 
assignable ;  if  not,  5.  Whether  the  action  in  the  names  of  the  other 
parties  can  be  sustained,  in  consequence  of  the  defendant  having 
omitted  to  demur  to  the  complaint;  and,  6.  If  the  last  point  is  determined 
against  the  defendant,  whether  the  value  of  the  interest  of  Gray  ought 
to  have  been  deducted  from  the  recovery.     .     .     .^ 

(4.)  If  the  interest  of  Mr.  Gray  in  the  cause  of  action  was  not  of  a 
nature  to  be  transferable  by  assignment,  the  written  transfer  given  in 
evidence  was  inoperative,  and  he  was  a  necessarj'  party  to  the  action. 
We  decided  at  the  last  term,  in  the  case  of  McKee  v.  Judd,    12  N.  Y., 

1  The  reporter's  statement  has  been  abridged. 

2  Only  so  much  of  the  opinion  is  given  as  relates  to  the  fourth  and  fifth  questions.  On  the 
first  three  questions,  the  plaintiffs'  contention  was  sustained. 


zaukiskuv  and  othkrs  v.  smith.  409 

622,  that  a  right  of  action  for  the  conversion  of  personal  chattels  might 
be  assigned,  so  as  to  vest  a  property  in  the  assignee,  and  enable  him, 
under  the  provisions  of  the  Code,  to  maintain  the  action.  This  was  in 
accordance  with  Gi//ei  v.  Fairchild,  4  Denio,  80,  and  Hudson  v.  Plcts, 
II  Paige,  180,  and  I  have  no  doubt  of  its  correctness.  But  this  is  a 
different  case,  and  depends,  as  we  shall  see,  upon  different  principles. 
The  maxim  of  the  common  law  is,  actio  personalis  moritur  aim  persona. 
This  principle  was  not  originallj-  applied  to  causes  of  action  arising  out 
of  the  breach  of  a  contract.  These  were  parcel  of  the  personal  estate 
in  respect  to  which  the  executor  or  administrator  represents  the  person 
of  the  deceased,  and  is  in  law  his  assignee.'  But  as  to  this  class  of 
rights  of  action,  late  cases  have  somewhat  qualified  the  rule,  and  it  is 
now  well  settled  that  an  executor  or  administrator  can  not  maintain  an 
action  iipon  an  express  or  implied  promise  to  the  deceased,  where  the 
damage  consists  entirely  of  the  personal  suffering  of  the  deceased, 
whether  mental  or  corporeal.  Actions  for  the  breach  of  a  promise  of 
marriage,  for  unskillfulness  of  medical  practitioners  contrarj^  to  their 
implied  undertaking,  the  imprisonment  of  a  party  on  account  of  the 
neglect  of  his  attorney  to  perform  his  professional  engagement,  fall 
under  this  head,  being  considered  virtually  actions  for  injuries  to  the 
person."  But  all  actions  arising  ex  delicto,  were  governed  by  this 
maxim,  until  the  statute  3  Ed.  III.,  ch.  7,  changed  the  rule  respecting 
actions  of  trespass  de  bonis  asporlatis,  authorizing  such  suits  to  be 
maintained  by  executors  where  the  taking  was  in  the  lifetime  of  their 
testator.  Another  act,  passed  in  the  fifteenth  year  of  the  same  reign 
(ch.  5),  gave  the  like  actions  to  administrators.  These  statutes  have 
been  greatly  extended  by  an  equitable  construction,  as  will  be  seen  by 
the  cases  collected  in  Williams'  Treatise  on  Executors,  vol.  i,  p.  670; 
but  I  do  not  find  that  an  action  on  the  case  for  a  deceit  has  ever  been 
considered  as  within  the  pur\'iew  of  the  statutes.  It  was  not  until  a 
late  period  that  executors  or  administrators  were  enabled  to  maintain 
an  action  for  injuries  to  the  real  estate  of  the  deceased.  Such  reme- 
dies were  given  by  the  statute  3  and  4  William  IV.,  ch.  42.  Broom's 
Leg.  Max.,  405.  The  revised  statutes  of  this  state  have  proceeded  on 
the  assumption  that  b}'  the  common  law,  actions  for  a  tort  could  not 
be  maintained  by  personal  representatives.  Hence  we  find  it  enacted 
that  ' '  executors  and  administrators  shall  have  actions  of  trespass 
against  any  person  who  shall  have  wasted,  destroyed,  taken  or  carried 
awaj-,  or  converted  to  his  own  use  the  goods  of  their  testator  or  intes- 
tate in  his  lifetime.  They  may  also  maintain  actions  for  trespass  com- 
mitted on  the  real  estate  of  the  deceased  in  his  lifetime.  "  2  R.  S.  1 14, 
§  4.  If  it  be  true  that  the  executors  or  administrators  are,  as  was  said 
by  Lord  Abinger  in  Raymond  v.  Fitch,  the  testator's  assignees,  it   is 

1  Citing,  Raj'tnond  v.  Fitch,   2  Crompt.,  Mees.  &  R.  58S,  597;  i  Williams  on  Ex'rs.,  677; 
Broom's  I,egal  Maxims,  702. 

2  Citing,  Chamberlain  v.  Williamson,  2  Haule  &  Selw.  408. 


410  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

fair  to  assume  that  they  take  whatever  of  a  personal  nature  the  deceased 
had  which  was  capable  of  assignment,  and  that  the  power  to  assign  and 
to  transmit  to  personal  representatives  are  convertible  propositions. 
Upon  the  reason  of  the  thing  this  should  be  so,  for  no  good  title  can  pass  to 
an  assignee  of  an  interest  which  dies  with  the  person  of  the  assignor. 
This  distinction  has  been  made  the  foundation  of  several  judicial 
decisions.  Cowen,  J.,  said,  in  The  People  v.  The  Tioga  Commoii 
Picas,  [1837]  19  Wend.  -jG,  "I  have  never  been  able  to  find  any  case 
in  England  which,  in  respect  to  personal  estate,  has  given  the  assignee 
a  greater  right  than  would  go  to  an  executor,  none  which  vests  in  him 
a  right  of  action  for  a  personal  tort,  or  an}-  other  mere  tort."  In 
Somnerv.  Wilt,  [181S]  4  Serg.  &  Rawle,  19,  28,  the  action  was  for  a 
malicious  abuse  of  legal  process  against  propert}-.  The  plaintiff  before 
bringing  the  action  had  made  an  assignment  under  an  insolvent  act  of 
all  his  estate,  credits  and  effects.  It  was  objected  that  he  had  parted  with 
his  right  of  action.  The  court,  however,  held  that  it  was  not  the 
subject  of  an  assignment  under  the  insolvent  act.  They  say  that  the 
cause  of  action  was  neither  estate,  credits  or  effects  ;  that  it  was  a  per- 
sonal action,  that  would  die  with  the  person.  They  add,  "If  it  passed 
by  the  assignment  his  death  would  not  afiect  it."  The  same  doctrine 
was  laid  down  in  North  v.  Turner,  9  Serg.  &  R. ,  244.  It  was  an  action 
of  trespass  de  bonis,  and  the  question  was  whether  an  assignment  by 
one  of  the  plaintiffs  pendciite  lite,  accompanied  by  the  pa3-ment  of  the 
defendant's  costs,  qualified  him  to  be  a  witness — the  courts  in  Pennsyl- 
vania allowing  parties  to  the  record,  when  not  interested,  to  be 
witnesses.  The  court  held  that  the  assignment  was  effectual  to  divest 
him  of  interest ;  and  the}'  say  that  the  rule,  holding  the  right  of  action 
for  personal  injuries  not  to  be  assignable,  "  does  not  hold  with  respect 
to  a  trespass  committed  against  the  party's  goods,  the  remedy  for 
which  survives  to  his  personal  representatives,  by  the  statute  4  Ed. 
III.,  ch.  7,  which  clearly  shows  that  such  a  cause  of  action  is  separable 
from  the  person  of  the  owner."  And  Story,  J.,  Comegys  v.  Vasse, 
I  Pet.,  213,  remarked  that  it  might  in  general  be  assumed  "that  mere 
personal  torts,  which  die  with  the  party  and  do  not  survive  to  his  per- 
sonal representatives,  are  not  capable  of  passing  by  assignment." 

These  cases  certainly  furnish  a  respectable  amount  of  judicial 
authority,  and  I  think  warrant  us  in  holding,  that  any  interest  to 
which  the  personal  representatives  of  a  deceased  part}'  A'ould  not 
succeed,  is  not  the  subject  of  assignment  inter  vivos.  The  subject  is  one 
of  great  practical  importance,  since  the  Code  of  Procedure  has  author- 
ized actions  by  assignees  of  a  chose  in  action  ;  and  I  am  glad  to  find  a 
rule  laid  down,  of  easy  application,  which  will  furnish  a  read}-  solution 
of  many  questions  upon  which  the  courts  of  original  jurisdiction  have 
differed  in  opinion.  I  may  mention  an  additional  case  from  the  supreme 
court  of  Pennsylvania,  upon  the  general  question.  O' Donnell  v.  Syebert, 
13  Serg.  &  R. ,  54,  56,  was  an  action  for  an  excessive  distress.     It  was  held 


ZABRISKnC    AND    OTHERS    V.    SMITH.  411 

that  the  cause  of  action  could  not  be  assigned.  "It  is  not,"  say  the 
court,  ' '  an  action  of  contract  or  of  property. ' '  The  amendment  made,  in 
185 1,  to  the  I  nth  section  of  the  Code  seems  to  have  been  designed  to 
correct  an  erroneous  construction  sometimes  given  to  the  section  as 
orignally  enacted,  by  which  all  causes  in  action  were  held  to  be  assigna- 
ble ;  but  I  do  not  think  the  amendment  bears  upon  the  present  question. 
If  I  am  right  in  what  has  been  said  the  instrument  executed  by  Gray  to 
Zabriskie  did  not  pass  any  interest. 

(5.)  Although  Gray,  on  the  assumption  that  he  had  not  parted  with 
his  interest,  was  a  necessary  party  to  the  action,  the  defendant  might, 
notwithstanding,  consent  to  waive  the  objection  and  litigate  the  case 
upon  the  merits.  Under  the  former  system,  the  defendant  could  not  in 
actions  cjc  delicto  object  to  the  non-joinder  of  one  who  ought  to  have 
been  made  a  party  plaintiff,  except  by  plea  in  abatement, ^  and  the  Code 
of  Procedure  provides  that  where  there  is  a  defect  of  parties  apparent 
upon  the  face  of  the  complaint,  the  defendant  may  demur  ;  and  that 
where  such  an  objection  exists,  but  it  does  not  appear  by  the  complaint, 
it  may  be  taken  by  answer,  §  144,  subd.  4,  and  §  147  ;  but  if  no  such 
objection  be  taken  either  by  demurrer  or  answer,  the  defendant  shall  be 
deemed  to  have  waived  the  same,  §  148.  A  dilatory  defence,  which  a 
plea  in  abatement  is  considered  to  be,  is  not  favored  ;  but  he  who  is 
entitled  to  avail  himself  of  it  must  interpose  it  promptly,  according  to 
the  established  forms.  Here  the  facts  were  fully  disclosed  by  the  com- 
plaint, and  the  defendant  could  have  demurred.  The  authority  to 
object  by  way  of  answer  is,  in  terms,  limited  to  cases  where  the  fact 
does  not  appear  in  the  prior  pleading.  When,  therefore,  the  last  sec- 
tion which  I  have  quoted  declares  that  if  the  objection  is  not  taken  by 
demurrer  or  answer  it  shall  be  considered  as  waived,  it  means  that  if  it 
be  not  taken  by  demurrer  where  that  mode  is  proper,  or  by  answer  in 
cases  where  that  is  the  appropriate  method,  it  is  waived.  This  con- 
struction will  give  full  effect  to  all  the  language,  and  will,  besides,  com- 
pel the  defendant  to  take  his  ground  with  the  promptness  inculcated 
by  the  rule  of  pleading  to  which  I  have  referred.  I  observ^e  that  it  has 
been  determined  at  a  special  term  in  the  5th  district  that  matter  in 
abatement  must  be  pleaded  separately,  prior  to  the  putting  in  a  plea  in 
bar.  Gardiner  v.  Clark,  6  How.  Pr.  449.  The  reasoning  of  Mr.  Jus- 
tice W.  F.  Allen  in  that  case  commends  itself  to  my  judgment,  and 
individually  I  should  be  ready  to  approve  its  correctness,  but  it  is 
•unnecessary  for  the  court  in  this  case  to  pass  upon  that  question.  The 
defendant  must  be  held  to  have  waived  the  objection  to  the  non-joinder 
of  Gray  by  omitting  to  demur.  Judgment  affirmed r 

1  Citing,  I  Saund.  251,  291,  note  (g)  and    note  (n);   Gilbert  7'.  Dickerson,  7  Wend.  451. 

2  On  the  remaining  question,  the  discussion  of  which  is  omitted,  it  was  held  that  where  a 
defendant  permits  one  or  more  of  several  joint  tenants  to  sue  alone  in  tort,  by  not  pleading 
the  joint  tenancy  in  abatement,  the  recovery  should  be  for  the  damage  sustained  by  all  the 
joint  tenants.     Otherwise  if  the  suit  is  by  one  or  more  of  several  tenants  in  common. 

Criticised  (on  the  ground  that  the  decision  is  based  on  the  common  law  and  ignores  a 


412  IN  WHOSE  name;  the;  action  should  be  brought. 

BYXBIE  ET  AL  v.  WOOD. 

Court  op  Appeals  of  New  York,  June,  1862. 

[24  iV.    Y.  607.] 

Appeal  from  the  Superior  Court  of  New  York  citj'.  The  plaintiffs, 
as  assignees  of  Edward  E.  Marvine,  sued  the  defendant  to  recover  from 
him  certain  sums  of  money,  which  it  was  claimed  he  had  obtained  from 
Marvine  by  means  of  various  false  statements  and  representations  ;  which 
representations  and  statements  were  also  characterized  in  the  complaint 
as  fraudulent.  One  of  them  was  as  to  the  price  of  a  barque,  which  the 
defendant  represented  to  have  cost  him  $12,000,  but  which,  in  fact,  had 
cost  but  $4,000.  For  a  half  interest  in  the  barque,  Marvine,  bj-  a  sealed 
contract,  agreed  to  pay  $6,000.  The  defendant  and  Marvine  embarked 
in  a  joint  venture,  which  consisted  in  the  purchase  and  fitting  out  of 
the  barque  and  supplying  her  with  a  cargo  of  a  very  miscellaneous 
character  for  a  voyage  to  California.  It  was  stated  in  the  complaint 
that  the  defendant,  by  whom  the  purchases  were  made,  falsified  the 
accounts  of  such  purchases,  so  as  to  represent  himself  to  have  paid  out 
a  much  larger  amount  than  he  actually  had;  and  that,  upon  the  basis 
of  such  false  accounts,  Marvine  paid  to  the  defendant,  upon  a 
settlement,  as  his  share  of  the  expenses  of  the  adventure,  $6,559.62 
more  than  was  really  due  from  him ;  which  sum,  with  interest, 
the  plaintiffs  claimed  to  recover.  The  complaint  also  stated  that  the 
defendant  exhibited  to  INIarvine,  as  an  inducement  to  enter  into  the  ad- 
venture, a  letter  purporting  to  have  been  written  by  one  T.  O.  Larkin 
to  the  defendant,  apprising  him  of  the  discovery  of  gold  in  California, 
and  recommending  the  shipment  of  an  assorted  cargo  to  that  territory, 
as  likely  to  be  attended  with  enorniovis  profit. 

To  this  action  the  defendant,  by  answer,  interposed  various  defences: 
I.  That  Marvine  had  not  assigned  the  claim,  but  was  still  the  true 
party  in  interest ;  2.  That  all  the  statements  made,  and  accounts  ren- 
dered with  such  statements,  were  true,  and  the  defendant  had  received 
only  the  money  he  was  entitled  to,  and  that  the  accounts  were  fairly 
settled  ;   3.  That  Marvine  had  not  paid  the  amounts  claimed,  as  some  of 

New  York  statute  -whereby  the  cause  survived  and  therefore  should  have  been  assignable): 
Fried  V.  New  York  Central  R.  R.  (1858),  25  How.  Pr.  285;  Jackson  v.  Daggett  (1881),  24  Hun, 
204.     And  see  Haight  v.  Hayt  (1859),  19  N.  Y.  464,  465. 

Accord  (on  the  ground  that  the  cause  does  not  survive,  at  common  law  or  by  statute): 
Slauson  v.  Schivabacher  (1892),  4  Wash.  783  [action  by  assignee  of  an  insolvent  debtor  for 
injury  to  the  business  credit  and  reputation  of  his  assignor  from  an  alleged  malicious  levy 
of  an  attachment  prior  to  the  assignment]:  Farwcll  Co.  ;■.  IVoJf  {\'&f)'j),  96  Wis.  10,  given  in 
text,  infra. 

On  the  extension  of  the  assignability  of  a  right  in  tort  through  the  statutory  extension  of 
jts  survivability  see,  Vimontv.  Chicago  &  Northwesterti  Ry.  (i8S6),69  Iowa,  296,  given  in 
text,  infra,  an  1  the  notes  thereto. — Ed. 


HVXIUE  ET  AL  :■•  WOOD.  413 

the  property  in  which,  (at  an  estimated  value,)  part  payment  was  made, 
was  subject  to  certain  liens.  It  was  further  claimed  on  the  trial  that 
by  a  motion  for  a  non-suit,  the  defendant  raised  the  point  that  the 
claim  was  not  assignable,  and  also  the  point  that  Marvine  ought  to 
have  been  made  a  party  plaintifT  to  the  suit,  and,  therefore,  the  plain- 
tiffs could  not  recover,  because  there  was  a  defect  of  parties. 

The  cause,  when  at  issue,  was  duly  referred  to  three  referees,  who 
proceeded  to  hear  the  same,  and  in  the  course  of  the  trial  admitted 
some  evidence  to  which  the  defendant  objected,  and,  on  its  admission, 
excepted  thereto  ;  and  at  the  close  of  the  trial  the  referees  made  a 
detailed  report  of  their  findings  of  fact  and  conclusions  of  law,  ending 
with  an  award  of  judgment  in  favor  of  the  plaintiffs.  From  the  judg- 
ment, entered  on  that  report,  the  defendant  appealed  to  the  Superior 
Court  at  general  term.  That  court  affirmed  the  judgment,  and  from 
such  judgment  of  affirmance  the  defendant  appealed  to  this  court. 

John  W.  Edmonds,  for  the  appellant. 

Wm.  Curtis  JVoyes,  for  the  respondents. 

Gould,  J.  .  .  .^  To  the  claim  that  there  was  a  defect  of  parties, 
in  that  Marvine  was  not  made  a  party  plaintiff,  there  is  a  complete 
answer  in  law,  in  that  such  a  point  must  be  expressly  raised  either  by 
demurrer  or  answer,  and  it  is  not  raised  in  either  way.    Code  §  144-148. 

That  Marvine  was  the  real  party  in  interest  is  expressly  negatived,  as 
matter  of  fact,  by  the  ninth  finding  of  the  referees,  that  he  ''diily 
assigned  and  transferred  to  the  plaintiffs  all  claims  and  demands,  which 
he  had  against  the  defendant,  arising  out  of  such  adventure,  "  &c.,  in 
terms  covering  all  the  referees  sustained  as  a  cause  of  action.  The 
question,  (in  any  case,)  whether  the  plaintiff  is  the  true  party  in  inter- 
est, or  whether  the  title  under  which  he  sues  is  a  mere  sham,  is,  of 
course,  one  thrt  every  defendantis  entitled  to  try.  And  if  he  relies  upon 
facts,  instead  of,  or  beyond,  or  in  contradiction  to,  the  plaintiff's  paper 
title  or  assignment,  the  question  is  not  one  of  law  for  the  court,  but  one 
of  fact  on  which  the  jury  are  to  pass.  In  this  case  the  referees  have  so 
passed,  and  the  finding  is  final. 

We  are  thus  brought  to  the  consideration  of  the  chief  ground  taken 
on  the  part  of  the  defendant,  which  is,  that  the  cause  of  action,  as  laid 
in  the  complaint,  was  founded  on  fraud  and  deceit,  and  that  such  an 
action  was  for  a  tort  of  such  a  nature  that  the  cause  of  action  is  not 
assignable.  The  authorities  cited  by  the  defence  in  support  of  this 
position,  Allen  v.  Addington,  7  Wend.  9  ;  Zabriskie  :-.  Smith,  13  N.  Y. 
333.  go  f^^  to  answer  the  position  ;  since  the^-  show  just  what  the  action 
is,  and  that  it  is  not  for  false  and  fraudulent  representations  by  which 
the  defendant  himself  obtained  money  or  property,  but  for  such  repre- 
sentations, as  to  the  credit  and  responsibility  of  a  third  person,  as 
induced  the  plaintiffs  in  those  suits  to  sell  property-  on  credit  to  such 

1  Part  of  the  opinion,  on  other  points,  is  omitted. 


■41-4  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

third  person,  and  thereby  the  plaintiffs  were  injured,  though  neither 
the  defendant  nor  his  property  were  benefited.  So  far  as  the  defend- 
ant's act  and  the  defendant  himself  were  concerned,  it  w^as  a  mere 
naked  tort  ;  and  even  as  to  these  decisions,  it  may  be  advisable  to  see 
how  fully  they  accord  with  the  Revised  Statutes.     2  R.  S.   447,  §§  i,  2. 

Such  is  by  no  means  the  case  before  us.  The  facts  as  found  by  the 
referees  are,  that,  by  false  representations  and  the  alteration  of  bills 
and  vouchers,  the  defendant  himself  received  from  Marvine  large  sums 
of  money  to  which  he  was  not  entitled  ;  and  they  have  found  that  the 
plaintiffs  are  entitled  to  recover,  not  for  any  fraud,  but  for  the  monej'' 
which  the  defendant  had  so  received,  and  which,  being  so  received,  he 
had  no  right  to  retain.  This  state  of  facts  does  not  necessarily  require 
an  action  to  be  brought  for  the  tort,  even  i  f  it  allows  one  to  be  so  brought. 
Such  facts  alwa^^s  raised,  in  law,  the  implied  promise  which  was  the 
contract-cause  of  action  in  indebitatus  assumpsit  for  money  had  and  re- 
ceived. Having  mone}'  that  rightfully  belongs  to  another,  creates  a 
debt ;  and  wherever  a  debt  exists  without  an  express  promise  to  pay, 
the  law  implies  a  promise  ;  and  the  action  always  sounds  in  contract. 

Under  the  Code  this  implied  promise  is  treated  as  a  fiction,  and  the 
facts  (out  of  which  the  prior  law  raised  the  promise)  are  to  be  stated 
without  any  designation  of  a  form  of  action  ;  and  the  law  gives  such 
judgment  as,  being  asked  for,  is  appropriate  to  the  facts.  Of  course, 
we  can  not  now  say  that  a  particular  phrase  makes  a  particular  form  of 
action,  so  that  a  party  by  its  use,  may  shut  himself  out  from  the  remedy 
which  his  facts  would  give  him.  He  may,  indeed,  so  utterly  miscon- 
ceive his  rights  as  to  make  his  complaint  not  at  all  adapted  thereto  ;  so 
that  his  offered  proofs  (or  even  his  proofs  put  in  without  objection) 
would  require  an  entirely  new  complaint  to  reach  them,  and  then  no 
court  can  give  him  judgment. 

In  the  case  before  us,  the  assignment  to  the  plaintiffs  purports  to  be 
of  "  claims  and  demands,  either  for  moneys  received  or  owing,  or  for 
false  and  frajidulent  representations,  or  deceit,  which  I  have  &c.,  by  rea- 
son of"  the  transactions  between  Marvine  and  Wood.  The  complaint 
says  that  Wood  made  false  and  fraudulent  representations  to  Marvine 
about  the  moneys  paid  for  joint  account,  and  "  by  means  of  such  false 
representations  fraudulently  and  deceitfully  obtained  "  property  &c., 
from  Marvine  ;  and  the  plaintiffs  (as  assignees  of  Marvane)  ' '  therefore 
demand  judgment  against  the  defendant  for  the  sum  of  $6,559.62,  and 
interest  from  October,  1848."  It  would  hardly  seem  that  this  is  a 
complaint  for  a  mere  naked  tort  in  an  action  claiming  damages  for  the 
wrong.  And  unless  it  be  so,  necessarily  and  unavoidably,  the  ends  of 
substantial  justice  would  require  us  to  disregard  the  words  that  charge 
a  wrong. 

Yet  even  this  seems  not  now  a  necessary  ground  for  sustaining  this 
judgment.  What  valid  objection  is  there  to  treating  these  words, 
("  fraudulently  and  by  deceit,  ")  as  mere  inducement,  containing  a  state- 


HYXRIE  ET  AL  Z'.   WOOD.  41") 

ment  of  the  facts  which  show  that  Marvine's  payment  was  not  a  vol- 
untary one  with  knowledge  of  the  facts,  and  that,  therefore,  he  was 
entitled  to  sue  to  recover  back  the  money ;  and  thus  anticipating  a 
defence  ?  How,  without  some  such  statement,  was  he  to  show  that  it 
was  not  a  voluntary  payment,  or  that  his  settlement  of  the  accounts 
was  not  final  and  binding  on  him  ?  If,  to  avoid  either  of  those  objec- 
tions, in  an  action  to  get  back  the  money  paid,  he  could  have  proved 
the  actual  facts,  there  can  be  no  objection  to  his  stating  them  in  his 
complaint.  But  conceding  that  a  tort  be  one  of  the  elements  that  go 
to  make  up  this  cau.se  of  action,  it  will  be  found  to  be  assignable.  It 
will  be  seen  to  be  of  that  class  of  torts  the  right  of  action  for  which 
would  survive  to  the  personal  representatives  of  the  claimant ;  and 
' '  the  power  to  assign  and  to  transmit  to  personal  representatives  are 
convertible  propositions."  Zabviskie  v.  Smith,  siipra.  And,  further, 
it  is,  w-ithin  the  decisions  both  before  and  since  the  code,  of  a  nature 
that  was  formerly  assignable  in  equity,  and  is  now  assignable  at  law. 
In  McKee  v.  Judd,  (2  Kern.,  625,)  it  is  held  "that  demands  arising  from 
injuries  strictly  personal,  (whether  arising  from  tort  or  contract,)  are  not 
assignable,  but  that  all  others  are.''  13  N.  Y.,  333-335,  336  ;  15  N.  Y., 
432.  And  by  the  Revised  Statutes  (2  R.  S.,  447,  §  i),  "for  wrongs  done 
to  the  property,  rights  or  interest  of  another,  for  which  an  action  might 
be  maintained,  &c.,  such  action  va.3.y  be  brought  after  the  death  of  the 
person  injured,  by  his  executors  or  administrators,  in  the  same  man- 
ner, &c.,  as  actions  founded  upon  contracts.  And  the  exceptions  to 
this  broad  general  rule  are  contained  in  the  next  section,  and  are  con- 
fined to  injuries  to  the  person  or  character.  In  this  case,  if  the  action 
be  for  the  fraud  and  deceit,  it  is  for  a  "  wrong  done  to  the  property,''' 
&c. ,  of  Marvine  ;  and  by  the  statute  could  be  brought  after  his  death 
by  his  personal  representatives,  and  is  assignable. 

The  defendant's  counsel  claims  that  the  findings  of  fact  hy  the 
referees  do  not  sustain  the  judgment,  because  they  have  not  found  the 
fraud,  which  is  alleged  in  the  complaint.  It  is  quite  true  that  they 
have  not  found  the  fact  of  fraud  ;  but  as  we  hold  that  the  action  is  sus- 
tainable without  there  having  been  any  fraud,  and  merely  as  an  action 
for  money,  which  the  defendant  has  no  right  to  retain,  the  failure  to 
find  fraud  is  no  objection  to  the  validity  of  the  judgment,  and  it  is  to 
be  afiirmed  as  not  being  an  action  for  the  fraud.  It  is  proper  to  note 
another  point  taken  for  the  defence  :  that,  as  the  assignor  of  the 
plaintiffs,  Marv'in  had  settled  the  account  and  receipted  it  as  correct, 
the  right  to  set  aside  that  settlement,  and  avoid  the  effect  of  it  as  a 
substantial  release  to  the  defendant,  and  the  right  to  avoid  the  effect 
of  fixing  the  price,  by  the  sealed  contract  to  give  $6, 000  for  one-half  of 
the  barque,  were  personal  rights,  which  Marvin  himself  must  assert, 
and  which  he  could  not  assign.  This  is  conclusively  answered,  by 
holding,  as  we  do,  that  an  account  settled,  or  a  relea,se  executed,  is  not 
the  title  by  which  the  defendant    received,    or   held  the  money,  but 


416 


IN  WHOSE  NAME  THE  ACTION  SHOUI.D  BE  BROUGHT, 


a  mere  acknowledgment  that,  the  items  being  true,  the  balance  is 
correct,  or  that  upon  those  stated  facts  the  defendant  is  liable  to  pay 
the  monej- :  that  the  contract  of  j^urchase  of  the  barque  is  not  avoided, 
but  the  undue  price  is  examined,  and  the  excess  is  to  be  recovered  as 
money  had  and  received  to  the  use  of  the  plaintiff;  and,  in  suing  for 
the  monej',  it  is  entirely  immaterial,  (in  our  present  modes  of  plead- 
ing,) whether  the  plaintiff  anticipates  what  would  be  matter  of  defence, 
and  says  in  advance  that  it  was  so  obtained  as  to  be  invalid,  and  no 
defence,  or  whether  he  omits  all  mention  of  it,  and  on  the  trial,  when 
it  is  interposed  as  a  defence,  proves  the  fraudulent  obtaining  of  it  which 
makes  it  void,  and  no  defence.  The  right  of  action  is  not  founded  on 
it ;  and  it  bears  no  resemblance  to  an  instrument  through  which  is  to 
be  made  the  title  which  is  to  found  an  action,  and  which  requires  to  be 
reformed,  or  set  aside,  to  obtain  that  title. 

In  any  view,    therefore,  the  judgment  of  the  Superior  Court  should 
be  affirmed. 

The  court  did  not  pass  upon   the  question  whether,  assuming  action 
to  be  for  tort,  it  was  of  such  a  character  as  to  be  assignable. 

Judgment  affirmed. ' 


JOHN    V.    FARWELL    COMPANY  v.   WOLF   AND    OTHERS. 

Supreme  Court  of  Wisconsin,  February  23,  icSgj. 

[96  Wis.  10.] 

Action  to  recover  damages  for  an  alleged  conspiracy'  to  defraud. 

The  complaint  sets  forth,  in  substance,  that  in  the  summer  of  1893 
•the  defendants  entered  into  a  fraudulent  conspiracy  to  defraud  whole- 
sale dealers  in  goods,  wares,  and  merchandise  ;  that  the  scheme  agreed 
upon  was  that  one  of  the  defendants,  Moses  Josephson,  should  purchase 
goods  of  such  dealers  on  credit,  without  any  intention  of  paying  for 
thesame,  have  the  same  delivered  at  his  store  in  New  Lisbon,  Wiscon- 
sin, and  that  the  goods  should  then  be  sold,  conve3'ed  away,  and  con- 
cealed in  such  a  way  that  the  proceeds  might  be  divided  between  the 
CO  conspirators  ;  that  pursuant  to  the  conspirac}',  in  August  and  Sep- 
tember, 1893,  goods,  wares,  and  merchandise  to  the  amount  of  $434.83 
were  purchased  of  the  plaintiff  in  the  name  of  Josephson,  were  delivered 
to  him  and  disposed  of  for  the  benefit  of  the  defendants,  pursuant  to 
this  fraudulent  scheme  ;  that  none  of  these  goods  have  been  paid  for; 
and  that  plaintiff  has  thereby  been  damaged  in  the  sum  of  $434.83  and 
interest  ;  that,  further,  in  pursuance  of  this  fraudulent  conspirac}',  other 
goods,  wares,  and  merchandise  were  at  various  times,  in  the  year    1893, 


1  See  also,  Gordon  v.  Hosletter  {1S67),  37  N.  V. 
250;  Salisbury  v.  Howe  (1882),  87  N.  Y.  128,  134. 


loi;  Sparnian   t.  Kfini  (1880),  83  N.  Y.  247, 


JOHN  \-.    I'ARWICLI,  COMPANY  Z'.   WOLl'   AND  OTHERS. 


417 


particularly  stated,  i)urchased  of  some  twenty-four  different  persons, 
copartnensliips,  and  corporations,  the  name  of  each  being  given,  with 
the  amount  purchased ;  that  all  these  goods  were  delivered  to  said 
Josephson,  and  disposed  of  for  the  benefit  of  the  defendants,  pursuant  to 
the  aforesaid  fraudulent  scheme  ;  that  none  of  these  goods  have  been 
paid  for  ;  and  that  before  the  commencement  of  this  action  these  sellers, 
for  a  valuable  consideration  paid  to  them  respectively' ,  sold,  assigned, 
and  conveyed  to  plaintiff  their  respective  claims  for  the  goods  so  sold 
and  delivered,  together  with  their  respective  causes  ©faction  for  damages 
against  defendants  on  account  of  the   aforesaid  conspiracy. 

The  aggregate  of  plaintiff's  claim  for  damages  for  goods  procured  of 
it  through  this  fraudulent  scheme,  and  of  the  several  other  claims 
mentioned,  amounted  to  $5,102.32,  for  which  sum  judgment  was  de- 
manded, with  interest.  The  defendants,  except  Josephson,  joined  in 
an  answer  to  the  complaint. 

On  the  trial  a  jurj^  found  for  the  plaintiff  on  all  the  issues,  and 
assessed  the  damages  at  the  full  amount  claimed,  which,  with  interest, 
made  $5,432.25.  Judgment  was  rendered  on  the  verdict,  and  defend- 
ants appealed.^ 

Bhun  &  Blum,  and/.  AI.  Morrow,  for  appellants. 

Lewis  &  Briggs,  and  J.  J.  Hughes,  for  respondent. 

Marshall,  J.     . 

The  further  point  is  made  that  the  several  alleged  assigned  claims  for 
damages  were  not  assignable  ;  therefore  that  the  recovery  thereon  can 
not  be  sustained.  Applying  the  usual  test  of  assignability, — that  is, 
whether  the  claims  are  such  as  survive  to  the  personal  representatives, 
we  start  with  the  presumption  that  it  will  not  be  seriously  contended  / 
that  such  clainis  survive  at  common  law.  To  be  sure,  counsel  cite  vari- 
ous adjudications  to  show  that  claims  for  injuries  to  personal  property 
do  so  survive,  but  they  have  no  application  to  this  case.  This  is  not  a 
claim  for  injury  to  personal  property  as  such.  At  most  it  is  only  an 
injury  to  a  property  right.  Webber  v.  Ouaw,  46  Wis.  i  iS,  and  Ale  Arthur 
V.  G.  B.  &  M.  C.  Co.,  34  Wis.  139,  are  confidently  referred  to,  but  they 
are  cases  of  injuries  to  property,  strictly  so  called,  and  follow  the  New 
York  authorities  respecting  the  assignability  of  such  claims. 

In  most  states,  as  here,  there  is  a  statutory  extension  of  the  common 
law  rules,  and  authorities  are  ver3'  numerous  respecting  the  subject, 
many  of  which,  however,  have  very  little  application  to  this  case  because 
of  statutory  differences.  The  New  York  statute  provides  that  "  actions 
for  all  wrongs  dojie  to  the  property  rights  or  interests  of  another  shall 
survive.'"  It  is  held  that  this  language  is  so  broad  and  com- 
prehensive as  to  cover  all  injuries  to  rights  of  property,  and  is 
not  confined  to  injuries  to  property  as  such ;  that  it  includes  actions 
for   damages    for    conspiracies  to    defraud    and   damages    for    deceit. 


uA^'r" 


;i-  \ 


t^'yn 


h^ 


'a 


1  The  reporter's  statement  has  been  slightly  abridged. 

2  Part  of  the  opinion  is  omitted. 


418  IN  whose;  name  the  x\ctiox  should  be  brought. 

Bond  V.  Smith,  4  Hun,  48 ;  Haight  v.  Hayt,  19  N.  Y.  464  ;  Lyon  v.. 
Park,  III  N.  Y.  350  ;  Brackett  v.  Griswold,  103  N.  Y.  425.  These  cases 
turn  entirely  on  the  meaning-  of  the  significant  words,  "  property  rights 
and  interests. "     Our  own  statute  (sec.  4253,  R.  S.),  so  far  as  it  relates 

r    ' to  this  subject,  is  as  follows  :     ' '  Actions  for  damages  done  to  real  and 

-"J^  personal  estates  "  shall  survive.     "STsImilar  statute  existed  in   Massa- 

ckusetts  at  a  very  early  day,  and  was  adopted  from  that  state  by  Michi- 
gan and  this  state  as  well.  It  received  construction  in  the  state  of  its 
origin,  before  adoption  here ;  hence,  under  a  familiar  rule,  such  con- 
struction was,  in  effect,  a  part  of  the  statute  itself  at  the  time  it  was 
ingrafted  upon  and  became  a  part  of  our  system. 

The  whole  subject  goes  back  to  St.  4  Edw.  III.  c.  7,  [1330].  Before 
that,  in  England,  no  action  for  injury  to  personal  property  survived. 
By  such  statute,  says  Mr.  Justice  Putnam,  in  effect,  in  Holmes  v. 
Moore,  [1827]  5  Pick.  257,  an  action  for  goods  carried  awa^^  survived, 
and  by  equitable  construction  it  was  held  that  the  remedy  for  a  wrong 
done  to  personal  property,  though  such  propert}^  was  not  actually 
carried  away,  survived,  and  such  statute,  with  such  construction,  was 
adopted  by  the  state  of  INIassachusetts  from  the  English  statute.  Follow- 
ing//f/?;?^^  z'.  Aloore,  in  Read  v.  Hatch,  [1837]  19  Pick.  47,  an  action  for 
damages  for  inducing  plaintiff,  by  fraudulent  representations  respecting 
the  insolvency  of  another,  to  sell  property  to  siich  other,  Shaw,  C.  J., 
in  delivering  the  opinion  of  the  court,  said,  in  effect,  that  a  fraud 
injuriously  affecting  a  person's  estate,  is  not  an  injury  to  such 
person's  personal  estate,  within  the  meaning  of  the  statute;  that 
to  hold  otherwise  would  be  to  give  to  the  statute  a  forced  con- 
struction, and  not  conformable  to  the  intent  of  its  framers  ;  that 
to  uphold  such  construction  would,  in  effect,  be  to  say  that  every 
injury  by  which  one  may  be  prevented,  from  pecuniary  gain  or  sub- 
jected to  pecuniar}^  loss  would,  directly  or  indirectly,  be  a  damage  to 
j^  his  personal  property.  The  statute  must  have  a  more  limited  con- 
•  struction,  and  be  confined  to  damages  done  to  some  specific  personal 

w    ^^    estate  of  which  one  may  be  the  owner.     The  mere  fraud  or  cheat  by 
4?  whichone  sustains  a  pecuniary  loss  can   not  be  regarded   as  damage 

Jt         'Sone  to  persoiiSrt  estate!     The  construction  tht:s  given  to  the  statute 
^ j^'^     Has  nevei    beell  departed  from.     See   Cutti7ig  v.  Tower,  14  Gray,  183  ; 
f(^^       Leggate  V.  Moulton,    115   Mass.    552:    Brush   v.  Sweet,  38  Mich.    57^- 
Dayton  v.  Fargo,  45  Mich.  153. 

The  only  case  previously  decided  in  this  court  that  throws  any  light 
on  the  subject  is  Murray  y.  Buell,  76  Wis.  657,  cited  by  respondent. 
Though  it  is  in  harmony  with  the  foregoing,  it  did  not  involve  the 
precise  question  under  discussion.  The  contention  there  appears  to  have 
been  that  an  action  for  damages  for  a  conspiracy  to  injure  another's  busi- 
ness was  assignable  as  an  injury  to  the  person  of  such  other.  This  court 
held  that  it  could  not  be  so  considered,  but  was  an  injur}'  to  such 
other's  business  interest  merely  ;  therefore  not  assignable.     It  did  not 


JOHN  V.   KARWELIy  COMPANY  V.  WOLP  AND  OTHERS. 


419 


occur  to  the  able  counsel  who  presented  the  case  in  this  court,  or  to  the 
present  chief  justice,  who  wrote  the  opinion,  that  such  a  cause  of  action 
could  be  held  assignable  as  an  injury  to  personal  estate.  Therefore  the 
subject  was  not  discussed,  though  to  say,  as  was  in  substance  said  in 
such  opinion,  that  such  a  cause  of  action  is  for  an  injury  to  business 
interests,  therefore  not  assignable,  is  quite  equivalent  to  saying  that  it 
is  an  injury  to  property  rights,  as  distinguished  from  an  injury  to 
specific  property,  therefore  not  assignable. 

The  result  of  what  has  been  said  is  that  the  several  assigned  claims 
for  damages,  upon  which  the  plaintiff  recovered,  did  not  pass  to  plain- 
tiff by  the  attempted  assignment  thereof,  and  that  such  recovery  can 
not  be  sustained. 

The  result  of  the  foregoing  is  that  the  plaintiff  in  not  entitled  to  re- 
cover on  any  claim  for  damages  other  than  that  caused  by  its  sale  of 
goods  to  Josephson  on  and  prior  to  the  i6th  day  of  September,  1893, 
amounting  in  value  to  $434.83.  Therefore  a  new  trial  must  be  had, 
unless  plaintiffs  consent  to  take  judgment  for  such  amount,  with 
interest  and  costs. 

By  the  Court. — The  judgment  of  the  circuit  court  is  reversed,  and  the 
cause  remanded  for  a  new  trial,  unless  plaintiff  elects  to  take  judgment 
for  $434.83  and  legal  interest  thereon  from  the  i6th  day  of  September, 
1893,  together  with  the  costs  of  the  trial  heretofore  taxed  in  the  circuit 
court.' 

1  Motion  for  a  new  hearing  denied,  April  30,  1897. 


NOTE. — THE    STATUTORY    EXTENSION   OF   THE    SURVIVABILITY   OF    CAUSES   OP   ACTION. 

In  recent  years,  the  survivability  of  causes  of  action  has  been  greatly  and  variously  ex- 
tended  by  the  legislatures.  Thus,  it  is  now  provided  in  Massachusetts,  that  "in  addition  to 
the  actions  which  survive  by  the  common  law,  the  following  shall  also  survive:  actions  of 
replevin;  of  tort  for  assault,  battery,  imp:isonment,  or  other  damage  to  the  person,  for 
goods  taken  and  carried  away  or  converted  by  defendant  to  his  own  use,  or  for  damage 
done  to  real  or  personal  estate,"     {Pub.  Stats.,  ch.  165,  g  i.) 

In  Connecticut,  "all  actions  for  injury  to  the  person,  whether  the  same  do  or  do  not  in- 
stantaneously or  otherwise  result  in  death,  to  the  reputation,  or  to  the  property,  and  actions 
to  recover  damages  for  injury  to  the  person  of  the  wife,  child,  o,  servant  of  any  per.son,  shall 
survive  to  his  executor  or  administrator."     (Gen.  Stats.,  g  1008.) 

In  Ohio,  through  an  amendment  in  1893,  "  in  addition  to  the  causes  of  action  which  survive 
at  common  law,  causes  of  action  in  mesne  profits,  or  for  injuries  to  the  person  or  property, 
or  fondeceit  Of  fra^(,l  shall  alsosurvive."  (90  Ohio  La7vs,  p.  140;  Rev.  Stats.,  §  4975.)  A  simi- 
lar enactment  is  found  in  Kansas.     (2  Gen.  Stats.  [1897],  214.) 

In  Iowa,  "all  causes  of  action  shall  survive,  and  may  be  brought  notwithstanding  the 
death  of  the  person  entitled  or  liable  to  the  same."     {Code,  '97,  g  3443.) 

The  statutes  of  several  states  declare  that  all  causes  of  action  except  those  for  libel  and 
slander  shall  survive;  and  in  others  still  there  are  wide  departures  from  the  common  law 
rule  as  to  the  survivability  of  causes  in  action.  Very  seldom,  however,  is  there  an  express 
enactment  as  to  their  assignability.  __—___——  — 

It  tn.re  IS  no  sucfi  enactment,  does  the  common  law  test  of  assignability,  as  given  in  the 
foregoing  cases,  still  hold?  In  other  words,  was  the  survivability  of  a  cause  of  action  the 
true  test  of  its  assignability,  or  was  it  only  a  convenient  test,  reasonably  accurate  at  the 
time  when  made,  because  of  the  then  existing  limits  of  the  doctrine  of  survivability? 
Granted  that  a  chose  in  action  which  does  not  now  survive  can  not  be  assigned,  does  it  fol- 
low that  a  chose  in  action  which  does  now  survive,  because  of  express  enactments,  is  there- 
fore now  assignable,  although  formerly  it  was  not  assignable  ? 


1. 


420  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


VIMONT    -'.  THE    CHICAGO    &    NORTHWESTERN    RAILWAY 

COMPANY. 

Supreme  Court  of  Iowa,  June  Term,   1886. 

[69  Iowa,   296.] 

Plaintiff  as  assignee  of  one  Darby  Carr,  brings  this  snit  to  recover 

t^  f     damages  for  a  personal  injury  sustained  by  said   T>a.rhy  Carr  while   in 

y  defendant's   employ   as   a  laborer  on  a  gravel   train,   and    which  was 

•  J\."         occasioned,  as  it  is  alleged,  by  the  negligence  of  his  co-employes.    This 

\K*^         1   appeal  is  from  the  order  of  the  circuit  court  sustaining  a  demurrer  to 

J  certain  counts  of  defendant's  answer. 

N.  M.  Hubbard  and  Whiting  S.  Clark,  for  appellant. 
Nourse  &  Kauffman,  for  appellee. 
\  Reed,  J. — It   is   alleged   in  the  third  paragraph  of  the  answer  that 

^^  ^  the  assignment  by  Carr  to  plaintiff  of  the  claim  on  which  the  action  is 

^-^/  IT    brought  was  executed,  delivered,  and  accepted  by  plaintiff,  and    its 
^        acceptance  took  effect,  in  the  state  of  Illinois,  and  that  by  the  common 
f^  law,  which  is  in  force  in  that  state,  the  assignment  of  said  cause  of 

'  action  is  void.  The  question  raised  by  the  demurrer  to  this  paragraph  is 
whether  the  plaintiff  is  precluded  by  these  facts  from  recovering  on  the 
cause  of  action  sued  on.  The  assignment  under  which  plaintiff  claims 
is  set  out  in  the  petition,  and  it  is  of  a  cause  of  action  which  is  alleged 
to  have  arisen  under  the  laws  of  this  state  in  favor  of  an  employe  of 
defendant  on  account  of  a  personal  injury  sustained  by  him  in  conse- 
quence of  the  negligence  of  a  co-employe. 

It  may  be  conceded  for  the  purposes  of  this  case,  we  think,   that   a 
claim  for  damages  arising  out  of  a  personal  tort,  and  having  its  origin 
where   the   common   law  is  in  force,   is   not   assignable   before   being 
reduced  to  judgment.    The  ground  upon  which  it  is  held  that  such  claim 
1  \     is  not  assignable  is  that  it  is  a  mere  personal  claim  in  favor  of  the 
^  rtr       injured  party,  and  that  it  does  not  become  part  of  his  estate,  or  descend 
\jr  to  his  representatives,  but  terminates  at  his  death  ;  and  consequently 

it  has  no  value  which  can  be  so  estimated  as  to  form  a  consideration 
for  a  sale,  and  there  is  in  it  no  element  of  property  to  make  it  the  sub- 
ject of  a  grant  or  assignment.  See  Rice  v.  Sio?ie,  i  Allen,  566  ;  People 
V.  Tioga  Com7no7i  Pleas,  19  Wend.  73.  The  contract  of  assignment  ot 
such  claim  between  parties  otherwise  competent  to  contract  is  void  at 
common  law,  then,  not  because  of  any  incapacity  of  the  parties  to 
enter  into  the  contract,  but  because  the  claim  itself  is  not  the  subject 
of  contract. 
J  Under  the  statute  of  Iowa,  however,  such  claims  are  given  a  char- 

I   acter  entirely  different  from  that  sustained  by  them  when  arising  under 
^     I    the  common  law.     They  are  not  merely  personal  claims  in  favor  of  the 
parties  sustaining  the  injuries,  and  they  do  not  terminate  with  their 


J^ 
f 


t^' 


VIMONT  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  COMPANY.       421 

death,  but  become  a  part  of  their  estates  and  descend  to  their  repre- 
sentatives, and  actions  thereon  may  be  maintained  by  the  representa- 
tives.^    They  are  also  assignable  under  the  law  of  this  state. ^ 

If  Carr,  plaintiff's  assignor,  had  a  valid  claim  for  damages  on  account 
of  the  alleged  injury,  such  claim  had  the  qualities  of  a  property  right 
or  interest.  It  constituted  a  part  of  his  estate,  and  was  capable  of 
being  transferred  within  the  state  by  assignment,  and  at  his  death  it 
would  have  descended  to  his  representatives,  and  his  assignee  or  repre- 
sentative could  have  maintained  an  action  in  his  own  name  for  its 
enforcement. 

It  seems  to  us  that  the  mere  carrying  of  this  claim  into  another  state 
could  not  have  the  effect  to  change  its  character  or  take  from  it  any  of 
its  qualities,  but  that  it  would  retain  its  properties  notwithstanding 
the  removal  of  the  person  in  whose  favor  it  arose  to  another  state  or 
country  ;  and  that,  as  it  had  the  properties  which  rendered  it  assignable 
imparted  to  it  by  the  laws  under  which  it  arose,  it  would  retain  those 
properties  when  taken  beyond  the  jurisdiction  of  those  laws,  and  would 
be  assignable  anywhere. 

The  other  questions  raised  by  the  demurrer  are  the  same  as  those 
determined  in  Vimontv.  Chicago  &  N.  IV.  R.  Co.,  64  Iowa,  513,  and 
the  ruling  of  the  circuit  court  thereon  is  in  accord  with  our  holding  in 
that  case. 

Adams,  J.,  dissenting.  Affirmed.^ 

1  Citing,  Code,  g§  2525-2527;  Carson  v.  McFadden,  10  Iowa,  91;  McKinley  v.  McGregor,  id. 
Ill;  Shafer  v.  Grimes,  23  Iowa,  550. 

2  Citing,  Weire  v.  City  of  Davenport,  11  Iowa,  49;  Gray  v.  McCallister,  50  Iowa,  497. 
8  For  the  opinion  on  a  re-hearing,  dealing  with  other  questions,  see  infra. 


NOTE.— EFFECT    ON    THE    ASSIGNABILITY   OF   A    CHOSE    IN    ACTION    IF   A    STATUTE    MAKES    IT 

SURVIVE. 


Accord,  with  the  general  doctrine  of  Vimont  v.  Chicago  Ry.  Co.:  Hawley  v.  Chicago  Ry. 
Co.  (1886)',  71  Iowa,  717,719.  Lekmannv.  Farwell  {19^1),  9S^V\s.i?,s,  189:  "  If  the  cause  of  action 
[for  a  personal  injury]  survived,  it  was  assignable.  Webber  v.  Quaw,  46  Wis.  118.  It  is  well 
understood  that  such  an  action  does  not  survive  at  common  law;  hence  the  question  is 
whether  it  survives  under  Sec.  4253  R-  S.,  as  amended  by  ch.  280,  Laws  of  1887.  .  .  .  The 
words  of  the  statute  are  plain.  They  are  to  the  effect  that  an  action  for  assault  andbatterj-, 
false  imprisonment,  or  other  damage  to  the  person,  shall  survive.  The  injury  resulting  from 
being  run  over  by  a  street  car  is  certainly  '  other  damage  to  the  person,'  and  it  is  damage  of 
the  same  character  as  the  damage  resulting  from  an  assault  and  battery;  that  is,  it  is 
physical  pain  and  suffering."— P<?;-  Winslow,  J. 

So  where  a  claim  for  a  personal  tort  is  made  assignable  after  verdict  and  before  judgment. 
Kent  V.  Chapel  (1897),  67  Minn.  420,  422:  "Was  this  verdict  Lin  an  action  for  an  assault]  as- 
signable? In  Hunt  V.  Conrad,  47  Minn.  557,  50  N.  W.  614,  it  was  held  that  a  right  to  recover 
damages  for  a  personal  tort  was  a  mere  personal  right  and  not  assignable  even  after  verdict 
and  before  judgment.  This  decision  seems  to  have  been  based  upon  what  was  considered 
by  the  court  principles  of  the  common  law,  and  its  attention  was  evidently  not  called  to  G. 
S.  1878,  c.  67,  I  41,  which  in  part  reads  as  follows:  'After  a  verdict  of  a  jury,  decision  or  find- 
ing of  a  court,  or  report  of  a  referee  in  any  action  for  a  wrong,  such  action  shall  not  abate 
by  the  death  of  any  party.'  The  legal  effect  of  this  statute  is  not  discussed  or  adverted  to  in 
Hunt  V.  Conrad,  and  even  if  sound  in  enunciating  the  common  law  doctrine,  it  is  inapplic- 
able to  the  statute  which  we  have  quoted,  and  which  is  the  same  as  G.  S.  1S94,  g  5171.    In  the 


w 


422  IN  whose;  name  the  action  should  be  brought. 

later  case  of  Cooper-  v.  St.  Paul  C.  R.  Co.,  55  Minu.  134,  56  N.  W.  5S8,  it  was  held  that  where 
the  party  dies  after  the  rendition  of  a  verdict  in  an  action  brought  to  recover  for  personal 
injuries  sustained  through  the  carelessness  or  negligence  of  the  defendant,  the  action  does 
not  abate,  but  may  be  continued  by  or  against  the  personal  representatives  of  the  deceased, 
under  the  provision  of  the  statute  which  we  have  above  quoted. 

"The  language  used  in  our  statute  is  substantially  that  in  Wait.  Code  N.  Y.,  I  121,  and  it 
was  held  under  that  code  that  '  a  claim  for  damages  for  a  purely  personal  wrong,  while  it  re- 
mains unliquidated  and  unascertained  by  a  verdict,  d  es  with  the  person;  but  the  intent  of 
the  section  of  the  code  above  cited  seems  to  be  to  prevent  that  result  after  the  claim  has  been 
ascertained  by  a  verdict.  In  that  case  the  verdict  becomes  property  which  passes  to  the 
representatives  :  f  the  deceased,  as  a  judgment  would  at  common  law.  It  becomes  the  duty 
of  the  executor  o-  administrator  to  defend  it  for  the  benefit  of  the  estate.'  IVood  v.  Phillips, 
II  Abb.  Pr.  (N.  S.)  i. 

"  In  the  case  at  bar,  the  claim  for  damages  became  liquidated  and  determined  by  the  ver- 
dict. There  was  no  further  uncertainty  about  the  claim,  and  the  statute,  by  its  terms,  recog- 
nizes and  preserves  the  right  of  entering  judgment  upon  it.  This  right  is  a  valuable  one, 
and  the  verdict  should  be  regarded  as  a  property  right— as  much  so  as  a  verdict  rendered  for 
violation  of  a  contract,  or  other  causes  of  action  not  arising  out  of  tort.  The  verdict  was 
therefore  assignable."— /Vr  Buck,  J. 

The  traditional  a  ithority  of  this  test  is  apparent  in  Slaiison  v.  Scfmiabacher  (1892),  4  Wash. 
783.  The  supreme  court  were  construing  this  enactment  of  the  Washington  Code:  "All  other 
causes  of  action  [except  those  for  wrongful  death,  on  which  causes,  it  was  declared  in  g  703,  the 
personal  representative  could  "  maintain  an  action  at  law  "]  by  one  person  against  another, 
whether  arising  on  contract  or  otherwise,  survive  to  the  personal  representatives  of  the  for- 
mer, and  against  the  personal  representatives  of  the  latter."  (Hill's  Code,  '91,  I  704;  Code 
'97,  I  5695)-  Said  the  court,  per  Dunbar,  J.,  p.  787:  "We  think  th.-  only  fair  construction  of 
g  703  is  that  the  legislature  intended  to  confer  upon  personal  representatives  certain  rights 
in  contradistinction  to  the  rights  of  heirs,  and  that  in  §  704  they  were  legislating  with  refer- 
ence to  causes  of  action  which  already  survived,  and  were  not  attempting  to  announce  what 
causes  of  action  should  survive.  If  this  theory  be  not  true,  then  the  enactment  of  §  703  was 
useless,  for  it  could  have  been  expressed  in  g  704  by  simply  the  omission  of  the  words  'cause 
of.'  If  the  appellant's  construction  is  correct,  there  is  no  limit  whatever  to  causes,  for  causes 
of  action  for  assault,  slander,  and  other  purely  personal  causes  would  survive;  and  this  would 
be  so  wide  a  departure  from  the  established  rule,  that  the  legislature  would  hardly  be  deemed 
to  have  intended  it  without  plainly  expressing  such  intention ."  It  was  accordingly  held  that 
a  cause  of  action  for  the  malicious  levy  of  an  attachment  did  not  survive  under  that  statute, 
and  therefore  could  not  be  assigned. 

Contra  (that  th  survivability  of  a  chose  in  action  is  not  always  the  test  of  its  assignabil- 
_itv):  Nor thl^icaso' Street  R.  R.  Co.  v.  A'ckley'  {V!^'^'!^]~'^Ti  111.  100  (given  in  text,  infra).  See 
also.  Rice  r.  5i'one  (1S61),  1  Allen  (Mass.),  566,  where  a  claiiii  tor  an  injury  to  the  person  was 
'  held  not  assignable  before  judgment  thereon,  although  after  a  verdict;  and  the  court,  per 
Chapman,  J.,  remarks  (p.  571):  "There  can  not  be  the  same  objection  to  the  transmission  of 
such  a  claim  to  executors  and  administrators  as  to  its  assignment  to  strangers;  and  by  our 
recent  legislation  actions  for  damage  to  the  person  .survive,  but  we  do  not  consider  this  as 
materially  affecting  the  question  whether  such  rights  of  action  may  be  assigned  to  a 
stranger."  To  the  same  effect  is  Linton  v.  Hurley  (1870),  104  Mass.  353;  and  compare  Bennett 
V.  Sweet  (1898),  171  Mass.  600. 

It  is  to  be  noted  also  that  in  Sanborn  v.  Doe  (1891),  92  Cal.  152,  and  Archer  v.  Freeman 
(1899),  124  Cal.  528,  a  mere  right  to  complain  of  fraud  is  held  not  assignable,  on  grounds  of 
public  policy,  and  without  reference  by  the  court  to  any  question  of  survivability.  And  in 
Pardoe  v.  Iowa  State  National  Bank  (1898),  106  Iowa,  345,  the  .Supreme  Court  of  Iowa  has  re- 
cently said:  "  In  view  of  the  language  of  the  statute  [United  States  Rev.  Stats.,  ?  5198,  declar- 
ing that  if  an  unlawful  rate  of  interest  has  been  paid  to  a  national  bank,  "the  person  by 
whom  it  has  been  paid,  or  his  legal  representatives,  may  recover  back,  in  an  action  in  the 
nature  of  an  actio.i  of  debt,  twice  the  amount  of  interest  thus  paid  "]  and  the  general  policy 
of  the  law  to  make  personal  to  the  debtor  the  right  to  take  advantage  of  usurj',  we  are  of 
opinion  that  the  statute  under  consideration  does  not  give  to  a  debtor  who  has  paid  usurious 
interest  the  right  to  transfer  his  claim  therefor  by  an  ordinary  sale  or  assignment  of  his 
right,  and  that  the  plaintiff  did  not  acquire  any  right,  as  against  the  defendant,  by  the 
assignment  which  the  heirs  of  Gaughran  [for  whose  estate  the  unlawful  interest  had  been 
paid]  made  to  \\m\."—Per  Robinson,  J.,  p.  351. 

And  generally,  on  the  test  of  assignability  of  a  right  in  tort,  see  the  remarks  of  Mr.  Cyprian 
William-;  in  10  La7u  Quarterly  Review,   156-7  (1894):    "A  perusal  of  the  judgments  in  the 


THE  NORTH  CHICAGO  STREET  RAILROAD  COMPANY  V.  ACKLEY.      423 

American  cases  will  show  that  there  has  been  a  tendency  to  take  the  rule  of  devolution  of 
rights  of  action  on  bankruptcy  as  a  guide.  It  has  at  all  events  been  considered  that  rights  of 
action  which  do  not  devolve  either  upon  a  trustee  in  bankruptcy  or  an  executor  can  not  be 
assignable;  although  in  the  case  of  Grocers'  Bank  v.  Clark  (1866),  4S  Barb.  28,  the  argument 
was  in  a  manner  reversed,  and  i  was  held  that  a  right  of  action  for  an  injury  to  property 
was  assignable,  and  therefore  passed  among  the  injured  party's  assets.  In  this  country 
[England],  however,  the  argument  from  analogy  to  the  law  of  bankruptcy  is  open  to  the 
objection  that  it  has  been  held  in  Seear  v.  Lawson  (18S0),  15  Ch.  D.  426,  that  such  rights  of 
action  as  devolve  upon  a  trustee  in  bankruptcy  are  assignable  by  the  policy  of  the  statute 
law  of  bankruptcy,  although  thty  might  not  have  been  assignable  by  the  bankrupt  himself. 

"  Rut  in  piv  humble  Judgment  a  better  test  of  t^^-  nggl^rimhility  of  a  right  of  action  in  tort 
may  be  found  by  referring  to  the  doctrinpg  of  the  commoii  law.  Tins  is  simply  i!ic  rule 
propounded  l)y  UUIliiord  as  long  ago  as  34  Hen.  vi.,  that  the  duty  of  a  thing  -which  i^ 
certain  niav  well  be  assigned  over,  coupled  with  the  explanation  afterwards  adopted  in 
determhung  the  law  of  forfeiture  on  outlawry,  that  a  right  of"acTion  soundinglii  damages 
may  be  said  to  be'certain  when  the  measure  of  damages  is  certain. 

'  By  the  anciSHt  COhUnonlaw,  the  king  only  could  as.sign  a  chose  in  action  directly,  and 
he  could  generally  assign  whatsoever  things  were  forfeited  to  him  on  outlawrj'  or  for  felony. 
17  Vin.  Abr.  87,  88  (Prerogative  M.  C.  17).  In  the  modern  common  law,  it  was  established 
that  a  common  person  might  assign  a  chose  in  action  indirectly  by  empowering  the  assignee 
to  sue  in  his  name.  By  the  ancient  common  law,  the  litnit  of  the  king' s  power  of  assigning  a 
chose  in  action  was  determined  by  the  certainty  or  uncertainty  of  the  thing,  and  for  the  pur- 
pose of  this  limitation  it  appears  that  damages  are  a  certain  thing  when  their  measure  is 
certain.  Is  there  any  good  reason  why  the  same  test  should  not  be  applied  to  ascertain  the 
limits  of  a  common  person's  power  of  indirectly  assigning  a  chose  in  action  ?  Especially 
when  the  settled  law  as  to  the  assignment  of  a  right  of  action  in  tort  by  subrogation  points 
to  the  same  rule;  subrogation  being  a  consequence  of  a  contract  of  indemnity,  and  indem- 
nity being  only  possible  against  a  pecuniary  loss  measured  by  injury  to  or  loss  of  prop- 
erty."— Ed. 


THE  NORTH  CHICAGO  STREET  RAILROAD  COINIPANY 
V.  ACKLEY. 

Supreme  Court  of  Illinois,  February  3,  1898. 

[171     ///..      TOO.] 

Appeal  from  the  Appellate  Court  for  the  First  District ;— heard  in 
that  court  on  appeal  from  the  Superior  Court  of  Cook  County  ;  the 
Hon.  Philip  Stein,  Judge,  presiding. 

Appellee  filed  his  bill  against  appellant,  alleging  that  in  1891  Mrs. 
Mary  Butler  was  injured  while  alighting  from  a  cable  car  of  the  defend- 
ant, by  reason  of  the  negligence  of  the  grip-man  ;  that  she  employed 
the  complainant  as  her  attorney,  upon  a  contingent  fee,  by  a  contract 
in  writing,  whereby  he  agreed  to  take  the  exclusive  charge  of  the  mat- 
ter and  prosecute  such  parties  as  he  might  deem  liable  for  such  injuries, 
and  begin  and  prosecute  diligently  to  final  settlement  such  suits  or 
legal  proceedings  as  he  might  deem  necessary  ;  that  he  was  to  receive 
a  sum  equal  to  one-half  the  gross  amount  recovered  or  received  on 
account  of  such  injuries,  and  to  secure  the  payment  of  such  fee 
Mrs.  Butler  assigned  to  the  complainant  and  his  assigns  one-half  of 
such  right  of  action,  and  agreed    to  assign   in    proper  legal  form,  in 


424  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

writing,  upon  request,  one-half  of  any  verdict  or  judgment  which 
might  be  had  or  recovered  by  reason  of  such  accident  and  injury  ;  that 
Mrs.  Butler  further  agreed  to  pay  the  costs,  and  not  to  settle  or  com- 
promise such  claim,  or  have  any  dealings  with  any  person  in  reference 
thereto  other  than  such  attorney,  but  if  the  matter  were  settled  before 
the  suit  was  placed  on  the  trial  call,  the  fees  were  to  be  less  than  one- 
half,  in  proportion  to  the  work  done  up  to  the  date  of  such  settlement. 
This  contract  was  signed  and  sealed  by  the  parties  September  2,  1891. 
The  bill  then  recites  a  collateral  verbal  agreement,  made  at  the  same 
time,  whereby  the  complainant  agreed  to  employ  associate  counsel, 
and  states  that  this  written  contract  conveyed  to  the  complainant  the 
ownership  of  one-half  of  Mrs.  Butler's  right  of  action  ;  alleges  that, 
relying  on  such  assignment  and  covenants,  the  complainant  hunted  up 
witnesses,  took  their  written  statements  and  addresses,  began  a  suit  in 
September,  1891,  engaged  associate  counsel,  prepared  the  pleadings, 
watched  the  case  when  it  was  reached  upon  the  first  call,  in  April, 
1894,  had  it  then  marked  for  trial,  and  watched  it  eight  days  on  the 
trial  call;  that  on  May  15,  1894,  while  it  was  on  the  trial  call,  the 
defendant,  by  one  of  its  attorneys,  called  on  Mrs.  Butler  and  assured 
her  that,  notwithstanding  her  previous  assignment  of  such  cause  of 
action,  (of  which  notice  to  the  defendant  is  charged),  she  had  full 
power  herself  to  release  and  discharge  the  defendant  from  all  liability 
by  reason  of  such  injuries ;  that  she  owed  complainant  only  a  small 
amount  for  his  services ;  that  she  might  personally  collect  the  whole 
amount  which  the  company  would  pay,  and  that  the  company's 
attorneys  would  defend  her  from  any  suit  Ackley  might  bring ;  that 
thereupon  the  company's  attorney  paid  her  $3,750  and  obtained  from 
her  a  full  release,  together  with  a  letter  to  the  complainant  informing 
him  of  the  settlement,  and  directing  him  to  sign  a  stipulation  of  the 
settlement ;  that  on  the  day  following,  without  notice  to  the  com- 
plainant, the  case  was  called  up  out  of  its  order  in  the  court  in  which 
it  was  on  the  trial  call,  and  a  judgment  entered  for  $3,750,  which  was 
satisfied  in  open  court  ;  that  the  complainant  has  never  received  any- 
thing for  his  services ;  that  Mrs.  Butler  and  the  Railroad  Company 
refuse  to  pay  him  anything,  and  that  she  is  insolvent  as  he  is  informed 
and  believes  ;  that  by  reason  of  these  facts  Mrs.  Butler  had  no  legal 
right  to  receive  more  than  one-half  of  the  money  paid  as  compensation 
for  such  injury,  and  that  the  defendant  was  bound,  after  notice,  to  pay 
one-half  of  whatever  amount  was  agreed  upon  in  settlement  of  such 
claim,  to  the  complainant,  and  that  such  right  of  the  complainant  could 
not  be  taken  from  him  without  his  consent ;  that  there  was  due  to  the 
complainant  from  the  defendant  the  sum  of  $1,875,  being  one-half  of 
the  amount  for  which  the  settlement  was  made,  with  legal  interest 
from  May  15,  1894.  The  bill  then  prays  that  the  defendant  be  decreed 
to  pay  to  the  complainant  the  amount  alleged  to  be  due,  and  for  general 
relief. 


THR  NORTH  CHICAGO  STREET  RAILROAD  COMPANY  V.  ACKLEY.      425 

On  June  5,  1S94,  the  appearance  of  the  defendant  was  entered,  and 
on  June  30  a  default  was  taken  against  it.  On  September  1 1  the  court 
rendered  a  decree  that  the  bill  be  taken  as  confessed,  and  that  all  mat- 
ters and  tliing^s  therein  stated  were  true  ;  that  the  equities  were  with 
the  complainant ;  that  the  court  had  jurisdiction  of  and  over  all  the 
parties  thereto  and  the  subject  matter  therein,  and  that  there  was  due 
and  owing-  from  the  defendant  to  the  complainant  the  sum  of  $1,875, 
being  one-half  of  the  sum  of  $3,750  which  was  paid  to  Mary  Butler  by 
the  defendant,  as  alleged  in  the  bill,  and  on  motion  of  the  complainant 
it  was  ordered  and  decreed  that  the  complainant  have  and  recover  from 
the  defendant  the  sum  of  $1,875,  together  with  cost  of  suit.  A  motion 
was  made  by  the  defendant  to  set  aside  the  decree  and  for  leave  to  file 
an  answer  at  its  cost,  which  was  supported  by  affidavit  to  the  effect  that 
the  defendant  had  a  defence  to  the  bill  upon  the  merits  of  the  whole  of 
the  complainant's  demand,  which  motion  was  denied  by  the  court.  The 
defendant  (appellant  here)  appealed  to  the  Appellate  Court  for  the  first 
district,  where  the  decree  of  the  trial  court  was  affirmed,  and  it  prose- 
cutes this  appeal. 

Egbert  /amieson,  and  John  A.  Rose,  for  appellant.* 

L.  M.  Ackley,  pro  seJ^ 

Mr.  Chief  Justice  Phillips  delivered  the  opinion  of  court : 

Where  the  defendant  to  a  bill  in  chancery  has  been  defaulted  and  a 
decree  ^r£»  confesso  entered,  that  decree  concludes  the  party  only  as  to 

1  Counel  for  the  appellant  made  the  following  j  oints: 

A  right  of  action  for  personal  injuries  is  not  assignable.  R(uJMiad-G«.'»- Maker,  91  111. 
314;  Norton  v.  Tuttle,  60  id.  134;  Prosser  v.  Edfttunds,  i  Y.  &  C.  481;  Rice  v.  Stone,  i  Allen,  56S; 
La  lid  and  Loan  Co.  v.  Speyer,  138  111.  145;  Linton  v.  Hurley,  104  Mass.  353;  Coughlin  v.  Kail, 
road  Co.,  71  N.  Y.  446;  Oliwellv.  Vcrdenhalven,  26  id.  116;  Averill  v.  Longfellmv,  66  Me.  237; 
Su'ansto7i  v.  Mining  Co.,  13  Fed.  Rep.  216;  Railroad  Co.  v.  Railroad  Co.,  87  Ga.  3S8;  Hunt  v. 
Conrad,  47  Minn.  557;  Greenhood  on  Public  Policy,  474;  Boardman  v.  Thompson,  25  Iowa,  487; 
LezL'is  V.  Lewis,  15  Ohio,  715;  Elwoodv.  Wilson,  21  Iowa,  523. 

A  decree /i;o  coKyi'MO  concludes  the  party  only  as  to  the  averments  to  the  bill.  He  may 
contest  the  sufficiency  of  the  bill  itself,  and  insist  that  the  averments  contained  in  it  do  not 
justify  the  decree.     Gault  v.  Hoagland,  25  111.  241;  Railroad  Co.  v.  Maker,  91  id.  314. 

A  cause  of  action  on  a  verbal  contract,  or  for  an  injury  to  the  person  or  property  of  an- 
other, is  not  assignable,  so  as  to  pass  the  right  of  action.  Railroad  Co.  v.  Loeb,  iiS  111.  203; 
Railroad  Co.  v.  Calkins,  27  111.  App.  55. 

A  contract  between  a  client  and  the  attorney,  whereby  the  client  shall  not  have  the  privi- 
lege of  settling  or  discontinuing  his  .suit  without  the  assent  of  the  attorney,  is  void.  Lewis  v. 
Lewis,  15  Ohio,  715. 

2  Counsel  for  appellee  made  the  following  points  : 

A  right  of  action  to  recover  damages  for  negligence  resulting  in  an  injury  to  property 
may  be  assigned,  and  an  action  at  law  therefor  may  be  brought  by  the  assignee  in  the 
assignor's  name.  Insurance  Co.  v.  Frost,  37  111.  333  ;  Railroad  Co.  v.  Middlecoff,  150  id.  27; 
Over  V.  Railroad  Co.,  63  Fed.  Rep.  34  ;  Cunningham  v.  Railroad  Co.,  102  Ind.  478. 

All  such  rights  of  action  for  a  tort  as  would  survive  to  the  personal  representatives  may 
be  assigned,  so  as  to  pass  an  interest.     Tyson  v.  McGuinness,  25  Wis.  656. 

All  choses  in  action  embracing  demands  which  are  considered  as  matters  of  property  or 
estate,  are  now  assignable  either  at  law  or  equity.  Nothing  is  excluded  but  mere  personal 
torts,  which  die  with  the  party.     Hoyt  v.  Thompson,  i  Paige,  320. 

All  such  rights  of  action  for  tort  as  would  survive  to  the  personal  representatives  may  be 
assigned  so  as  to  pas.s  an  interest  to  the  assignee,  which  he  can  enforce  by  suit  at  law. 
Final  v.  Backus,  18  Mich.  218. 


426  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

the  avennents  of  the  bill,  and  the  sufficiency  of  the  bill  itself,  and  the 
averements  contained  in  it,  ma}-  be  attacked  as  not  justifying  the  decree. 
Gault  V.  Hoagland,  25  111.  241.  The  material  inquiry  therefore  is,  first, 
whether  a  right  of  action  for  personal  injuries  is  assignable  ;  and  sec- 
ond, whether  a  contract  b}-  which  the  control  of  the  party  in  interest 
over  litigation  carried  on  in  his  name  or  behalf  is  prevented  is  void. 

By  the  common  law,  actions  arising  out  of  torts  did  not,  in  general, 
survive.  The  statute  of  this  state  has  materially  changed  the  rule 
with  reference  to  actions  which  survive,  and  it  is  now  the  general  rule  in 
this  country  that  causes  of  action  arising  from  torts  to  property,  real 
or  personal,  or  injuries  to  the  decedent's  estate  by  which  its  value  is 
diminished,  survive  and  go  to  the  executor  and  are  assets  in  his  hands, 
and  such  causes  of  action  are  assignable.  But  it  is  usually  held  that 
torts  to  the  person  or  character,  when  the  injury  or  damage  is  confined 
to  the  body  or  the  feelings,  and  those  contracts  the  breach  of  which 
produces  direct  injury  and  damage,  both  mentally  and  to  the  person, 
are,  so  long  as  they  are  executory,  not  assignable.  The  controversy 
here  is  whether  an  action  for  personal  injuries  is  assignable. 

Numerous  authorities  are  referred  to  by  counsel  for  appellee  which 
lay  down  the  rule  that  in  many  cases  of  torts  to  property  causes  of 
action  may  be  assigned,  and  of  those  cases  we  cite  the  following  :  In 
Jackson  V.  Daggett,  31  N.  Y.  Sup.  204,  an  action  against  a  sheriff  for  fail- 
ure to  return  an  execution  was  held  assignable.  Dinney  v.  Foy,  38 
Barb.  18,  was  an  action  against  a  sheriflF  for  neglecting  to  arrest  a  debtor 
upon  an  execution  against  his  person,  and  the  cause  of  action  was  held 
assignable.  Grant  v.  Ludlow,  8  Ohio  St.  51,  was  a  bill  of  review  to  set 
aside  a  decree  based  on  a  commercial  transaction.  The  case  was  rela- 
tive to  a  mortgage,  and  the  point  made  was,  that  the  transaction  was 
in  the  nature  of  a  tort,  and  not  transferable  to  executors  or  administra- 
tors, and  died  with  the  person.  The  court  held  that  it  survived — that 
the  mortgage  was  assignable.  Robinson  v.  Weeks,  6  How.  Pr.  161,  was 
an  action  for  taking  and  converting  personal  property,  brought  hy  an 
assignee,  and  it  was  held  that  the  assignment  was  good.  Hall  v.  Cin- 
cinnati Railroad  Co.,  I  Disney,  58,  was  a  case  that  decides  that  under 
the  Ohio  code  an  assignee  of  a  claim  for  damages  resulting  from  injuries 
to  personal  or  real  estate  may  bring  an  action  in  his  own  name.  More 
V.  Massini,  32  Cal.  590,  was  a  case  wherein  it  was  held  that  a  claim  for 
damage  caused  by  a  trespass  on  land  is  assignable.  Weire  v.  Daven- 
port, 1 1  Iowa,  49,  was  a  case  wherein  it  was  held  that  a  damage  to 
realty  is  assignable.  Natiojial  Exchange  Bank  v.  McLoon,  jt.  Me.  498, 
was  a  case  which  held  good  an  assignment  by  an  heir  of  the  owner  of  a 
ship  destroyed  by  the  "Alabama",  of  his  claim  against  the  United 
States  for  such  destruction.  Fried  v.  New  York  Central  Railroad  Co., 
43  N.  Y.  Sup.  I,  holds  that  the  right  of  action  for  carelessly  and  negli- 
gently setting  fire  to  and  burning  up  grass,  fences,  and  hay  upon  a  farm 
is  assignable.      Viinont  v.   Chicago  and  Northwestern  Railroad  Co. ,  64 


THE  NORTH  CHICAGO  STREET  RAILROAD  COMPANY  V.   ACKLHV.       427 

Iowa,  513,  was  a  case  in  which  there  was  an  assignment  of  the  right  of 
action  for  personal  injuries  to  a  resident  of  Iowa  by  a  non-resident,  and 
the  question  arose  as  to  the  validity  of  the  assignment,  on  a  motion  to 
transfer  the  case  to  the  United  States  Court,  and  the  court  held  that 
such  assignment  was  good,  on  the  strength  of  Gray  v.  Allen,  4  Iowa, 
497.  Zagbaum  v.  Parker,  66  Barb.  341,  was  a  case  of  false  imprison- 
ment, where  there  was  an  agreement  to  secure  services  by  the  assign- 
ment of  a  verdict,  and  the  agreement  was  held  good.  This  is  under 
the  New  York  code,  under  which  champerty  and  maintenance  do  not 
exist.  Brady  V.  rF/;//;/t^,  24  Mich.  154,  was  an  action  in  trover  brought 
by  a  purchaser  of  a  melodeon  after  the  conversion,  and  the  question  was 
whether  this  sale  constituted  an  assignment  of  the  right  to  sue,  and  the 
court  held  that  a  right  of  action  in  trover  is  assignable.  Grant  v.  Ellis, 
26  Mich.  201,  was  a  case  holding  that  an  action  in  trover  for  convert- 
ing timber  is  assignable.  Finn  v.  Corbit,  36  Mich.  318,  was  a  case  hold- 
ing that  a  right  of  action  for  trespass  to  property  is  assignable.  Final  v. 
Backus,  18  Mich.  218,  was  a  case  in  which  the  court  holds  that  a  right 
of  action  for  conversion  of  logs  is  assignable.  In  Brackett  v.  Griswold, 
103  N.  Y.  425,  the  question  involved  was  whether  a  cause  of  action 
growing  out  of  a  false  annual  report  by  a  trustee,  affecting  a  creditor, 
and  giving  him  an  action  under  the  statute,  died  with  the  creditor,  and 
it  was  held  that  it  did.  This  question  was  joined  with  a  charge  of  con- 
spiracy to  cheat  and  defraud,  and  it  was  held  that  this  affected  a  prop- 
erty right,  and  survived.  Stewart  v.  Hoiiston  and  Texas  Central  Rail- 
way Co.,  62  Tex.  246,  was  a  case  in  which  it  was  held  that  an  unliqui- 
dated claim  for  personal  injury  can  not  be  assigned  bj^  the  party  injured, 
in  Texas.  The  court  approves  Railroad  Co.  z>.  Freeman,  57  Texas,  156, 
and  holds  that  as  there  was  no  survival  there  could  be  no  assignment 
of  the  action  for  personal  injuries.  In  the  Freeman  case,  supra,  the 
question  involved  was,  whether  a  claim  against  a  railroad  company  for 
killing  and  injuring  live-stock  could  be  assigned  in  equity,  so  as  to 
enable  the  assignee  to  bring  suit  in  his  own  name,  and  the  court  held 
that  personal  torts  are  not  assignable,  but  that  claims  growing  out  of 
and  adhering  to  property  may  be  assigned.  In  Choteati  v.  Boiighton, 
100  Mo.  406,  the  question  involved  was,  whether  a  right  of  action  for  a 
trespass  to  realty  was  assignable,  and  the  court  held  that  it  was,  and 
followed  the  case  of  ^<:/z«^/fl'^r  :'.  Wabash,  St.  Louis  and  Pacific  Rail- 
road Co.,  86  Mo.  613.  This  latter  case  was  an  action  brought  against  a 
railroad  company  for  killing  a  hog  which  had  strayed  through  a  defec- 
tive fence,  and  it  was  held  that  such  a  right  of  action  might  be  assigned, 
as  it  would  survive  the  death  of  the  owner  under  the  code. 

All  these  cases — and  many  others  might  be  cited^sustain  the  prin- 
ciple that  causes  of  action  for  injuries  to  propert}-,  real  or  personal,  \>x 
which  an  estate  is  diminished,  are  generally'  assignable.     On  groundsi 
of  public  policy  the  sale  or  assignment  of  actions  for  injuries  to  the/ 
person  are  void.     The  law  will  not  consider  the  injuries  of  a  citizen/ 


428  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

I  whereby  he  is  injured  in  his  person  to  be,  as  a  cause  of  action,  a  com- 
modit}^  of  sale.  On  other  grounds  assignability  is  not  legal. 
In  the  discussion  of  the  question  of  assignability  of  causes  of  action 
for  torts,  courts  have  usually  based  their  decisions  on  the  theory  that 
where  a  cause  of  action  survived  it  was  assignable.  Is  that  the  sole 
test?  Bispham,  in  his  Principles  of  Equity,  pp.  218,  219,  states: 
"  So,  too,  equity  will  not  recognize  assignments  of  certain  species  of 
■  property  which  it  would  be  against  the  policy  of  the  law  to  allow  the 
owners  to  part  with.  These  are,  pensions  given  as  rewards  for  extraor- 
dinary services,  pay  or  half  pay  in  the  army,  the  salaries  of  judges, 
and  other  revenues  and  emoluments  of  a  kindred  character,  which 
reasons  of  state  require  should  remain  always  for  the  benefit  of  the 
person  to  whom  they  were  originally  given.  .  .  .  Yet  in  all  these 
cases  any  balance  unpaid  at  the  time  of  death  would  survive  to  the  per. 
sonal  representative.  But  the  right  of  assignment  is  precluded  on 
the  principles  of  public  policy. ' ' 

Pomeroy,  in  his  work  on  Equity  Jurisprudence,  sec.  1275,  says  :  "It 
becomes  important,  then,  in  fixing  the  scope  of  the  equity  jurisdiction 
to  determine  what  things  in  action  may  thus  be  legally  assigned.  The 
following  criterion  is  universally  adopted  :  All  things  in  action  which 
survive  and  pass  to  the  personal  representatives  of  a  decedent  creditor 
as  assets,  or  continue  as  liabilities  against  the  representatives  of  a 
decedent  debtor,  are,  in  general,  thus  assignable  ;  all  which  do  not  thus 
survive,  but  which  die  with  the  person  of  the  creditor  or  of  the  debtor 
are  not  assignable.  The  first  of  these  classes,  according  to  the  doctrine 
prevailing  throughout  the  United  States,  includes  all  claims  arising 
from  contract,  expressed  or  implied,  with  certain  well  defined  exceptions, 
and  those  arising  from  torts  to  real  or  personal  property,  and  from 
frauds,  deceits  and  other  wrongs,  whereby  an  estate  real  or  personal,  is 
injured,  diminished  or  damaged.  The  second  class  embraces  all  torts 
to  the  person  or  character  where  the  injury  and  damage  are  confined  to 
the  body  and  the  feelings,  and  also  those  contracts,  often  implied,  the 
breach  of  which  produces  only  direct  injury  and  damage,  bodily  or 
mental,  to  the  person,  such  as  promises  to  marry,  injuries  done  by  the 
want  of  skill  of  a  medical  practitioner  contrary  to  his  implied  under- 
taking, and  the  like,  and  also  those  contracts,  so  long  as  they  are  execu- 
tory, which  stipulate  solely  for  the  special  personal  services,  skill,  or 
knowledge  of  a  contracting  party.  " 

Here  is  a  distinction  clearly  drawn  between  injuries  to  property  and 
Injuries  to  the  person.  This  distinction  rests  on  a  sound  principle.  If  a 
person  receives  injuries  to  his  person  through  the  negligence  of  another, 
by  our  statute,  sec.  123,  chap.  3,  the  action  therefor  survives.  By 
chapter  70,  where  death  results  from  such  injuries  caused  by  such  neg 
ligence  of  another  the  action  still  survives,  but  is  brought  for  the 
exclusive  use  of  the  widow  and  next  of  kin.  The  administrator  can 
not  recover  damages  for  the  estate  and  at  the  same  time  recover  for  the 


THE  NORTH  CHICAGO  STREET  RAILROAD  COMPANY  Z'.  ACKLEV.      429 

exclusive  benefit  of  the  widow.  Statutes  like  chapter  70  are  in  force 
in  most  of  the  states.  May  a  person  injured  assign  the  cause  01  action 
immediately  after  his  injury,  and  thus,  in  case  of  his  death  from  that 
injury,  legally  bar  a  recovery  by  the  administrator  for  the  exclusive 
benefit  of  the  widow  and  next  of  kin  ?  The  purpose  of  chapter  70  is  to 
benefit  the  widow  and  the  next  of  kin .  If  an  assignment  on  the  basis 
of  the  survival  of  the  action  were  the  sole  test,  then  in  the  case  men- 
tioned the  assignment  would  be  valid.  But  the  very  purpose  of  the 
survival,  as  created  by  the  statute,  is  for  the  benefit  of  the  widow  and 
next  of  kin,  which  purpose  the  law  will  not  permit  to  be  defeated. 
Whether  the  action  be  for  assault  and  battery  or  for  injuries  caused  by 
the  negligence  of  another,  still  the  same  rule  obtains,  and  the  action 
is  included  in  the  term  actions  for  injuries  to  the  person.  The  possible 
result  of  the  assignment  of  such  an  action  would  be  that  the  purpose  of 
the  law  might  be  defeated.  Courts  have  with  but  one  exception  steadily 
held  that  an  action  for  injuries  to  the  body  is  not  assignable.  These 
actions  did  not  survive  at  common  law,  and  statutes  providing  for  such 
survival  have  had  their  birth  since  the  passage  of  Lord  Campbell 's  act,  in 
1852,  which,  by  chapter  70  of  our  Revised  Statutes,  is  substantially 
adopted.  If  such  actions  are  held  assignable  on  the  sole  ground  of  sur- 
vival, then  an  assignee  in  bankruptcy  or  for  the  benefit  of  creditors 
would  take  the  cause  of  action. 

This  principle  that  actions  for  personal  injuries  are  not  assignable  is 
well  sustained  by  authority.  In  RLe  z'.  Stone,  i  Allen,  568,  it  was  held 
that  an  assignment  of  a  claim  for  personal  injuries  is  void,  although 
made  after  verdict  but  before  judgment  in  an  action  to  recover  damages 
for  such  injury.  The  court  say  :  ' '  Such  claims  were  not  assignable  at 
common  law.  On  the  contrary,  a  possibility,  right  of  entry,  thing  of 
action,  cause  of  suit  or  title  for  condition  broken,  could  not  be  granted 
or  assigned  over  at  common  law.  But  this  ancient  doctrine  has  been 
greatly  relaxed.  Commercial  paper  was  first  made  assignable  to  meet 
the  necessities  of  commerce  and  trade.  Courts  of  equity  also  inter- 
fered to  protect  assignments  of  various  choses  in  action,  and  after  a 
while  courts  of  law  recognized  the  validity  of  such  assignments,  and 
protected  them  by  allowing  the  assignee  to  use  the  name  of  the  assignor 
for  enforcing  the  claim  assigned,  and  at  the  present  day  claims  for  prop- 
erty and  for  torts  done  to  property  are  generally  to  be  regarded  as  assign- 
able, especially  in  bankruptcy  and  insolvency.  There  may  be  excep- 
tions to  this  doctrine,  but  they  need  not  be  discussed  here.  But  in 
respect  to  all  claims  for  personal  injuries,  the  question  put  by  Lord 
Abinger  in  Hozvard  v.  Crowther,  8  M.  &  W.  603,  are  applicable.  '  Has 
it  ever  been  contended  that  the  assignees  of  a  bankrupt  can  recover  for 
his  wife's  adultery,  or  for  an  assault  ?  How  can  they  represent  his 
aggravated  feelings  ?  '  And  we  may  add  the  broader  inquiry,  has  any 
court  of  law  or  equity  ever  sanctioned  a  claim  by  an  assignee  to  com. 
pensation  for  wounded  feelings,  injured  reputation  or  bodilj'  pain  suf- 


430  JN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROITGHT. 

fered  by  an  assignor  ?  There  were  two  principal  reasons  assigned  whj^ 
the  assignments  above  mentioned  were  held  to  be  invalid  at  common  law. 
One  was  to  avoid  maintenance.  In  early  times  maintenance  was 
regarded  as  an  evil,  principally  because  it  would  enable  the  rich  and 
powerful  to  oppress  the  poor.  This  reason  has  in  modern  times  lost 
much,  but  not  the  whole,  of  its  force.  It  would  still  be  in  the  power 
of  litigious  persons,  whether  rich  or  poor,  to  harass  and  annoy  others 
if  they  were  allowed  to  purchase  claims  for  pain  and  sufferings  and 
prosecute  them  in  courts  as  assignees,  and  as  there  are  no  counter-bal- 
ancing reasons  in  favor  of  such  purchases,  growing  out  of  the  conven- 
ience of  business,  there  is  no  good  ground  for  a  change  of  the  law  in 
respect  to  such  claims.  The  other  reason  is  a  principle  of  law  applic- 
able to  all  assignments,  that  they  are  void  unless  the  assignor  has  either 
actually  or  potentially  the  thing  which  he  attempts  to  assign.  A  man 
can  not  grant  or  charge  that  which  he  has  not.  .  .  .  Most  of  the 
cases  in  which  the  right  to  assign  this  class  of  claims  has  been  dis- 
cussed have  been  assignments  under  the  statutes  of  bankruptcy  or  insol- 
vency. Much  of  the  discussion  has  therefore  related  to  the  construc- 
tion of  these  statutes,  but  the  nature  of  the  claims  has  also  been 
regarded  as  an  objection  to  their  being  assignable.  In  some  cases  the 
question  has  been  discussed  without  reference  to  such  statutes.  In 
Prosscr  v.  Edtmmds,  i  Younge  &  Coll.  481,  it  was  said  that  a  bare  right 
to  file  a  bill  in  equity  for  fraud  was  not  assignable.  Lord  Chief  Baron 
L^'ndhurst  remarked  that  courts  of  equity  had  relaxed  the  ancient  rule 
as  to  the  assignment  of  choses  in  action,  '  but  only  in  the  case  where 
something  more  than  a  mere  right  to  litigate  has  been  assigned. '  This 
constitutes  a  very  important  limitation."  This  case  was  followed  in 
Linton  7'.  Hurley,  104  Mass.  353. 

In  Coughlin  v.  New  York  Ceiitral  and  Hudson  River  Railroad  Co.,  71 
N.  Y.  446,  one  having  a  claim  against  a  railroad  company  for  personal 
injuries  accepted  an  offer  from  certain  attorneys  to  take  the  claim  for 
collection  and  divide  the  recovery.  Afterward  the  railroad  company, 
with  notice  of  the  attorney's  interest  in  the  cause  of  action,  settled 
with  the  claimant  and  secured  a  release.  In  holding  that  the  release 
was  a  bar  to  the  action  for  negligence,  and  that  the  attorneys  could  not 
demand  that  the  action  proceed  so  that  they  might  have  the  benefit  of 
their  agreement,  the  court  say :  "  So  if  the  cause  of  action  before 
judgment  be  in  its  nature  assignable,  the  owner  of  it  may  assign,  and, 
by  agreement,  create  legal  and  equitable  interests  therein,  and  such 
agreements  may  now  be  made  with  his  attorneys  as  well  as  with  other 
persons,  and  when  such  interests  have  been  created,  and  notice  given 
of  them,  they  must  be  respected.  But  .  .  .  when  the  cause  of 
action  is,  like  this,  such  as  by  its  nature  is  not  assignable,  the  party 
owning  it  can  not,  by  any  agreement,  give  his  attorney  or  other  person 
any  interest  therein," — citing  People  v.  Tioga  Common  Pleas,  19  Wend. 


the;   north  CHICAGO  STREET  RAILROAD  COMPANY  Z'.  ACKLEY.       -i31 

73,  and  Pulver  v.  Harris,  62  Barb.  500.     To  the  same  effect  is   Chicago 
and  Alton  Railroad  Co.  v.  Maker,  91  111.  312. 

The  only  exception  to  this  rule  is  the  case  of  Viniont  v.  Chicago  and 
Northwestern  Railway  Co.,  69  Iowa,  296,  which  has  been  followed  by 
other  cases  in  that  state.  We  do  not  think  the  reasoning  on  which  these 
decisions  are  based  is  sound,  and  we  decline  to  follow  them. 

The  second  proposition  to  be  determined  is,  is  a  contract  by  which 
the  person  in  whose  name  the  action  is  brought  and  to  whom  it  belongs, 
restricted  from  compromising  or  settling  such  a  claim  because  of  a  con- 
tract to  that  effect  ?  In  other  words,  is  such  a  contract  valid  and  bind- 
ing ?  The  law  does  not  discourage  settlements  in  cases  for  per- 
sonal injuries.  Whether  a  cause  of  action  exists,  and  if  so,  its  nature 
and  amovtnt,  are  facts  always  involved  in  uncertainty,  and  a  defendant 
has  a  right  to  buy  his  peace.  The  plaintiff  has  a  right  to  compromise, 
and  avoid  the  anxiety  resulting  from  a  cause  pending  to  which  he  is  a 
party.  Any  contract  whereby  a  client  is  prevented  from  settling  or 
discontinuing  his  suit  is  void,  as  such  agreement  would  foster  and 
encourage  litigation.' 

We  will  not  extend  this  opinion  by  a  discussion  of  other  questions 
raised.  The  decree  of  the  Superior  Court  of  Cook  county  and  the 
judgment  of  the  Appellate  Court  for  the  First  District  are  each  reversed 
and  the  cause  is  remanded,  with  directions  to  dismiss  the  bill.^ 

Reversed  and  retnattded.^ 

1  Citing,  l,ewis  v.  I,ewis,  15  Ohio,  715;  Elwood  v.  Wilson,  21  Iowa,  523;  Foster  v.  Jacks,  4 
Wall.  334;  Greenhood  on  Public  Policy,  474;  Boardman  v.  Thompson,  25  Iowa,  4S7;  Ruber  v. 
Johnson  [68  Minn.  74],  70  N.  W.  Rep.  S05. 

2  In  a  dissenting  opinion  Mr.  Justice  Craig  took  the  position  that,  "the  rule  seems  to 
be  quite  well  established  by  the  authorities,  leaving  out  of  view  questions  of  public  policy, 
that  all  causes  of  action  which,  under  the  law,  survive,  are  assignable.  The  test,  therefore, 
by  which  to  determine  whether  things  in  action  are  assignable,  seems  to  be  to  ascertain 
whether  the  claim  or  demand  survives  upon  the  death  of  the  party  or  dies  with  him.     .     .    . 

"  It  may  be  conceded  that  there  are  cases,  as  Rice  v.  Stone,  and  People  v.  Tioga  Common 
Pleas,  supra,  which  hold  that  a  cause  of  action  for  personal  injuries  is  not  assignable,  but  I 
regard  the  decided  weight  of  authority  the  other  way.  If  the  cause  of  action  in  the  case  un- 
der consideration  was  merely  ]iersonal, — one  which  would  not  survive  the  party  injured,  but 
would  die  with  him, — I  would  have  no  hesitation  in  holding,  as  was  done  in  Rice  v.  Stone 
and  People  v.  Tioga  Common  Pleas,  supra,  that  the  cause  of  accion  could  not  be  assigned  to  a 
third  party.  But  such  is  not  the  case.  Under  our  statute,  as  has  been  seen,  an  action  to  re- 
cover damages  for  personal  injuries  survives,  and  being  possessed  of  that  important  element 
no  reason  is  perceived  why  an  action  of  that  character  may  not  be  assigned  in  the  same 
way  and  with  like  effect  as  an  action  of  debt  composed  of  various  items,  or  as  an  action  to 
recover  damages  for  breach  of  contract."  Mr.  Justice  Magruder  concurred  in  these 
views. 

3  See  also,  Chicago  Gen.  Ry.  Co.  v.  Capek  (1899),  82  111.  App.  168.  Action  for  personal  injury 
brought  in  name  of  assignor  for  the  use  of  the  assignee.  Held,  that  the  principle  of  North 
Chicago  Street  Railway  Co.  v.  Ackley,  was  not  thereby  affected.  "  This  suit  can  not  be  main- 
tained for  the  use  of,  when  it  can  not  be  maintained  in  the  name  of,  an  assignee  of  the  claim 
in  question." — Per  Horton,  J. 


432  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


II.      NATURE   OF  THE   OBJECTION   THAT   ONE  SUING   ON   AN   ASSIGNED 
CHOSE   IN   ACTION    IS   NOT  THE   REAL   PARTY   IN    INTEREST. 

LYTLE  z'.  LYTLE. 
Court  of  Appeals  of  Kentucky,  Summer  Term,  1S59. 
[2  Meic.   127.] 

Judge  Duvall  delivered  the  opinion  of  the  court :  The  plaintiff 
states  in  her  petition  that  the  defendant  is  indebted  to  her  in  the  sum 
of  $160,  being  the  price  of  a  land  warrant  which  belonged  to  the  plain- 
tiff, and  which  the  defendant  had  sold  for  her  at  that  price ;  that  the 
plaintiff  w^as  indebted  to  James  Harmon,  and  had  assigned  to  him  by  a 
written  assignment,  which  is  exhibited  with  the  petition,  the  debt  due 
from  the  defendant ;  and  she  therefore  sues  for  the  use  of  said  Harmon. 

The  defendant  answered,  admitting  that  he  sold  the  warrant  for  the 
plaintiff  at  the  price  stated,  but  alleging  that  after  the  assignment  in 
favor  of  Harmon  had  been  executed  and  presented  to  him,  he  saw  the 
plaintiff,  who  told  defendant  not  to  pay  the  amount  to  Harmon,  as  she 
was  mistaken  as  to  the  amount  for  which  the  assignment  was  drawn. 
To  this  answer  the  plaintiff  demurred  ;  the  demurrer  was  overruled,  and 
j\;dgment  rendered  for  the  defendant  in  bar  of  the  action.  From  that 
judgment  the  plaintiff  has  appealed,  insisting  that  the  defence  set  up 
in  the  answer  is  insufficient. 

We  deem  it  unnecessary  to  consider  the  question  arising  on  the 
demurrer,  inasmuch  as,  upon  the  whole  record,  the  judgment  is  obvi- 
ously right,  and  must  therefore  be  affirmed. 

By  the  Civil  Code,  (sec.  30,)  "every  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  except  as  provided  in  section  33." 
By  the  latter  section  executors,  administrators,  guardians,  trustees  of 
an  express  trust,  persons  with  whom  contracts  may  be  made  for  the 
benefit  of  another,  or  persons  expressly  authorized  by  statute  to  do  so, 
may  bring  an  action  without  joining  the  person  for  whose  benefit  it  is 
prosecuted. 

Upon  the  face  of  the  petition  in  this  case  it  is  perfectly  clear  that  the 
plaintiff  was  not  the  owner  of  the  debt  for  the  recovery  of  which  the 
action  is  brought ;  but  that  Harmon  is  the  equitable  owner  of  it,  and 
he  is  therefore  the  real  party  in  interest  ;  and  under  the  plain  rule  of 
practice  referred  to,  the  action  should  have  been  prosecuted  in  his  name 
as  plaintiff.  It  is  true  that,  according  to  section  31,  the  assignor,  Mrs. 
Lytle,  was  a  necessary  party,  as  plaintiff  or  defendant,  as  the  assign- 
ment was  not  authorized  by  statute,  and  did  not  invest  the  assignee 
with  the  legal  title  to  the  debt  assigned.'     In  the  caption,  as  well  as  in 

1  Cf.  provision  from  Kentucky  Code,  ante,  p.  190. 


VAX  DOREN  V.   KELFE.  433 

the  body  of  the  petition,  the  name  of  Harmon  is  mentioned  as  the  per- 
son for  whose  use  the  action  is  brought  ;  but  he  did  not  thereby  become, 
either  substantially  or  formally,  a  party  to  the  action.  Under  the  law, 
as  it  stood  prior  to  the  adoption  of  the  Code,  a  different  rule  of  prac- 
tice prevailed,  because  no  one  but  the  legal  owner  of  a  chose  in  action 
could  prosecute  an  action  at  law  for  its  recovery  ;  and  in  case  where 
another  person  was  the  equitable  owner  of  the  demand,  the  suit  was 
usually  and  properly  brought  for  the  use  of  such  equitable  owner.  This 
rule  exists  no  longer,  and  the  requirements  of  the  Code,  by  which  it 
has  been  superseded,  are  imperative,  and  must  be  pursued.  Wilkes  v. 
Morehead,  MS.  opinion,  1856. 

It  follows  that  as  the  petition  itself  disclosed  the  fact  that  the  plain- 
tiff was  not  entitled  to  the  debt  sued  for,  but  that  the  right  of  action 
was  in  another,  no  valid  judgment  could  have  been  rendered  against 
the  defendant ;  and  upon  that  ground  alone  the  judgment  in  his  favor 
must  be  afiirmed. 

L.  M.  Cox,  for  appellant. 

L.  W.  A?idrews,  for  appellee. 


VAN  DOREN,  Respondent,  v.  RELFE,  Appellant. 

Supreme  Court  of  Missouri,  March  Term,  1855. 

[20  Mo.  455.] 

This  was  an  action  brought  in  January,  1S52,  to  recover  damages  for 
the  breach  of  a  covenant  of  seizin  contained  in  a  deed  from  Relfe  to 
Van  Doren  for  certain  land,  dated  August  13,  1836. 

The  land  was  within  what  is  known  as  the  Iron  Moixntain  tract,  con- 
firmed to  Joseph  Pratte  b}^  act  of  congress  of  July  4,  1836,  and  Relfe 
had  no  title  at  the  time  of  his  conveyance  to  Van  Doren.  On  the  8th  of 
May,  1838,  Van  Doren  convej^ed  all  his  property  of  every  description, 
including  the  land  acquired  of  Relfe,  and  all  his  rights  of  action,  to 
trustees  for  the  benefit  of  creditors.  In  this  conveyance,  the  trustees 
were  by  Van  Doren  appointed  his  ' '  true  and  lawful  attorneys  irrevocable, 
w  his  name  or  otherwise,  to  ask,  demand,  and  recover  and  receive  of  and 
from  all  and  every  person  or  persons  all  goods,  chattels,  debts  and  de- 
mands, due,  owing  or  belonging  unto  him,  and  in  default  of  delivery  or 
payment,  to  sue  for  the  same.  " 

In  1S42,  Van  Doren,  after  regular  proceedings  in  the  United  States 
District  Court  in  Ohio,  received  his  discharge  under  the  law  of  the 
United  States  for  the  relief  of  bankrupts,  by  virtue  of  which,  all  his 
property  and  rights  of  action  were  vested  in  assignees  in  bankruptc}-. 

The  Circuit  Court  held  that  the  beneficial  interest  in  the  claim  for 
damages  was  in  the  trustees,  unaffected  by  the  subsequent  proceedings 


p 


,iA 


434  IN  whose;  name  the  action  should  be  brought. 

in  bankruptcy,  and  tliat  by  the  terms  of  the  deed  to  them,  they  could 
maintain  a  suit  in  the  name  of  Van  Doren.     The  defendant  appealed. 

/.    \V.  Noell,  for  appellant. 
^^.  Frissell,  for  respondent.' 

Scott,  J. — The  point  relied  upon  by  the  defendant  is,  that  this  suit 
can  not  be  maintained  in  the  name  of  Van  Doren.  There  being  no  seizin 
in  James  H.  Relfe,  of  the  land  conveyed  by  him  to  Van  Doren,  the  cove- 
nant of  seizin  contained  in  Relfe 's  deed  was  broken  immediately,  and  a 
right  of  action  accrued  thereon  to  Van  Doren  so  soon  as  it  was  executed. 
So  there  was  in  Van  Doren  a  right  of  action  for  unliquidated  damages 
arising  from  a  breach  of  contract.  Van  Doren  afterwards  assigned  this 
right  of  action  to  trustees  for  the  benefit  of  his  creditors.  The  require- 
ment of  the  present  practice  act  is,  that  every  civil  action  must  be  prose- 
secuted  in  the  name  of  the  real  party  in  interest,  with  some  exceptions. 
Among  these  is  that  of  a  suit  by  the  trustees  of  an  express  trust.  Now 
but  for  this  exception,  this  suit  must  have  been  brought  in  the  name 
of  the  creditors.  There  was  no  interest  in  Van  Doren  which  would  have 
warranted  a  suit  in  his  name.  This  is  not  like  those  cases  in  which  a 
note  is  expressly  made  payable  to  a  person  who  holds  that  note  for  the 
benefit  of  others,  as  in  the  case  of  Harney  v.  Dutchcr  [1851],  15  Mo.  89, 
in  which  it  was  held  that  the  payee  of  the  note  was  the  trustee  of  an 
express  trust.  Here  Van  Doren  is  the  mere  owner  of  unliquidated 
damages  which  he  has  assigned  away.  He  then  is  in  the  situation  of 
the  holder  of  an  open  account,  who,  after  he  assigns  it  away,  can  not 
maintain  an  action  upon  it  in  his  own  name.^ 

If  the  right  of  action  was  not  transferred  to  Van  Doren 's  trustees, 
then  it  continued  in  him  until  his  bankruptcy,  when  it  passed  to  his 
assignee.  So,  in  whatever  light  the  matter  may  be  viewed.  Van  Doren 
has  no  right  to  institute  suit  in  his  own  name. 

With  the  concurrence  of  the  other  judges,  the  judgment  will  be 
reversed. 


WILSON  AND  ANOTHER  v.  CLARK. 

Supreme  Court  of  Indiana,  November  Term,  1858. 

[11  Ind.  385.] 

Appeal  from  the  Lagrange  Court  of  Common  Pleas. 
Perkins,  J. — Suit  by  the  paj^ee  against  the  makers  of  promissory 
notes.      Answer  by  the  defendants  : 

"  That  before  the  commencement  of  this  suit,  said  Clark,  the  payee  of  the  notes 
and  plaintiff  in  the  suit,  sold  and  delivered  said  notes  to  Thomas  J.  Spalding, 


1  The  arguments  are  omitted. 

2  Citing,  Mauro  v.  Walker,  iS  Mo.  Rep.  564.     See  also,  Allen  v.  Kennedy  (1886),  91  Mo.  324, 
i30- 


:^. 


WILSON  AND  ANOTHER  T.   CLARK.  435 

and  received  from  said  Spalding  the  price  and  consideration  of  said  sale  and 
delivery;  that  from  the  time  of  the  delivery  by  said  Clark  to  Spalding,  up  to  the 
present,  they  have  been  wholly  the  property  of  Spalding,  and  in  his  possession; 
that  said  Spalding  is  the  only  person  who  has  any  real  interest  in  or  title  to  said 
notes,  or  their  proceeds;  that  said  Clark,  by  said  sale  and  delivery,  assigned  said 
notes  to  said  Spalding  without  indorsement;  that  said  Clark  is  not  the  owner  of 
said  notes,  or  either  of  them,  nor  has  he  any  interest  whatever  in  or  to  them,  nor 
has  he  now,  or  at  any  other  time  since  said  sale,  had  either  of  said  notes  in  his  • 
possession,  nor  did  said  Clark  direct  or  authorize  this  action  to  be  commenced  in 
his  name,  but  it  was  commenced  by  the  direction  of  said  Spalding  alone." 

Demurrer  to    this  answer   sustained.     Judgment    for   the  plaintiff  for 
the  amount  of  the  notes. 

The  answer  was  a  good  bar  to  the  action,  and  the  demurrer  to  it  should  ,  .. 
have  been  overruled.  BYOur  statute,  suit  mn.st  he  hrnng-ht  in  t)ie  name  ^ 
of  the  real  party  in  interest.'  ' 

'  Another  point  is  made  in  the  case.  The  notes  sued  on  were  executed 
in  the  State  of  Michigan,  and  the  complaint  contains  the  following 
clause:  ^^j 

"By  the  law  of  Michigan,  in  force  at  the  date  cf  the  notes,  and  from   thence  I 
hitherto,  the  said  Clark,  or  his  indorsee,  can  alone  maintain  the  action."  I 

^         , 

It  is  uncertain  from  this  language,  whether  a  statute  is  relied  on  or       ^^(^ 

not ;  but  it  may  be  so  regarded,  as  the  doiibt  must  operate  against  the 
pleader. 

It  is  insisted  upon  this  averment  that  the  suit,  as  to  parties,  is  rightly 
brought,  and  that  the  law  of  this  state  as  to  parties  can  not  control  it.  , 

Waiving  the  question,  for  the  present,  whether  if  the  Michigan  law  7l{^ 
were  really  brought  before  the  Court,  it  could  have  the  effect  claimed  -rT* 
for  it,  it  is  enough  for  the  purposes  of  this  case  to  say  that  the  law  of  ijr  i*^ 
that  state  has  not  been  put  into  the  case.  The  clause  quoted  from  the 
complaint  amounts  to  nothing.  It  is  a  mere  assumption,  by  the  pleader, 
of  a  legal  proposition,  without  an  averment  of  any  facts  for  the  propo- 
sition to  rest  upon.  Pleadings  should  state  facts,  not  legal  proposi- 
tions. Under  our  S3^stem  of  pleading,  if  a  written  instrument  or  record, 
or  other  matter  of  fact,  be  relied  on  as  the  foundation  of  an  action,  it 
must  be  placed  plainly,  fully,  and  with  certainty,  upon  the  record.  If 
the  law  of  another  state  be  relied  on,  that  law  must  be  fully  recited  in 
the  pleading,  that  the  Court  may  judge  of  its  eflect,  and  be  able  to  give 
a  construction  to  it.  Sedgw.  on  Stat.,  p.  34.  Archbold  saj'S,  in  his 
Pleading  (pp.  146,  147),  that  if  a  statute  be  pleaded,  it  must  be  specially 
' '  recited  in  the  pleading  ;  otherwise  the  Court  can  not  take  notice  of 
anything  contained  in  it.  "  This  is  the  language  of  all  the  books  and 
adjudicated  cases.  14  Petersd.  Abr.  p.  172  ;  i  Bl.  Comm.  85,  note; 
The'  Ohio  Co.  v.  Ridge,  5  Blackf.  78;  State  v.  The  Trustees,  5  Ind.  91. 

1  Citing^  Lamson  v  Falls,  6  Ind.  309;  Harvey  v.  Jlj-er,  9  Ind.  391;  Ferry  v.  Jones,  10  Ind. 
226;  Swift  V.  Ellsworth,  10  Ind.  205. 


V 

(\'^ 


436 


IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


The  case  of  Breckenridge  v.  Baxton,  5  Ind.  501,  can  scarceh-  be  sup- 
ported. 

Our  statute  (2R.  S.,p.  45)  has  changed  the  rule  so  far  as  it  relates  to 
private  statutes  of  this  state.  They  may  be  pleaded  by  reference  to 
title  and  day  of  approval,  because  such  pleading  enables  the  Court, 
without  inconvenience,  to  examine  the  act  in  the  printed  statute-book. 
But  no  change  is  made  as  to  pleading  laws  of  another  state.  These,  the 
Court  may  not  be  able  to  examine  in  the  books.  They  may  have  to  de- 
pend upon  the  copy  recited  in  the  pleading. 

As  to  the  point  which  we  passed  by,  touching  the  right  of  the  legis- 
lature to  alter  the  law  as  to  parties,  it  is  one  not  necessary,  it  will  be 
perceived,  to  be  here  decided.  The  point  has,  however,  been  determined 
in  Hancock  v.  Ritchie,  at  this  term  [11  Ind.  48],  in  which  it  is  held  that 
the  statute  authorizing  the  equitable  assignee  to  sue  in  his  own  name, 
relates  to  the  remed}'  alone,  and  applies  to  then  existing  contracts.  > 

Per  Curiam. —  The  jndgme7it  is  reversed  with  costs. 

Cause  remanded,  &c. 

A.  Ellison,  for  the  appellants. 

/.  B.  Howe,  for  the  appellee. 


ft     f    y 


ROBBINS  :'.  DEVERILL. 

Supreme  Court  of  Wisconsin,  June  Term,  1865. 

[20  Wis.  142.] 


y 


Appeal  from  the  Circuit  Court  for  Winnebago  County. 

The  complaint  alleges  that,  on  etc.,  the  defendant  bought  of  Peet  & 
Williams,  at  Menasha  in  this  state,  one  hundred  barrels  of  flour,  marked, 
etc.,  for  which  the  defendant  then  and  there,  in  consideration  of  such 
sale,  promised  to  pay  them  $4.80  per  barrel,  on  delivery  of  the  same; 
that  the  same  was  to  be  delivered  by  the  said  Peet  &  Williams  by  ship- 
ment thereof  by  water  from  Menasha  to  Green  Bay  for  defendant;  that 
said  flour  was  delivered,  on  etc.,  by  such  shipment;  that  defendant  has 
been  often  requested  but  has  refused  to  pay  for  said  flour;  that  on  etc., 
said  Peet  &  Williams,  for  a  valuable  consideration,  duly  assigned  to  the 
plaintiff"  the  indebtedness  of  the  defendant  to  them  for  said  flour,  of  which 
defendant  had  due  notice  before  the  commencement  of  this  action;  and 
that  there  is  now  due  the  plaintiff"  from'  defendant  for  said  flour  $480.00, 
with  interest,  etc.  The  defendant  answered  deny  ing,  on  information  and 
belief,  that  the  indebtedness  mentioned  in  the  complaint  was  at  any 
time  assigned  by  said  Peet  &  Williams  to  the  plaintiff",  and  alleging 
that  said  indebtedness  was,  at  the  commencement  of  the  action,  and  con- 


1  Part  of  the  opinion  is  oinitt  d. 


KOIilUXS  V.  DEVERILL.  437 

tinued  to  be,  the  property  of  said  Peet  &  Williams;  that  plaintiff  was 
not  the  part}'  in  interest  in  the  action,  but  that  said  Peet  &  Williams 
were  the  real  parties  in  interest.  The  answer  then  set  up  a  counter- 
claim.    There  was  a  reply  in  denial  of  such  counterclaim. 

On  the  trial,  the  defendant  objected  to  the  introduction  of  any  evi- 
dence under  the  complaint,  on  the  ground  that  it  did  not  state  a  cause 
of  action.  Objection  overruled.  The  plaintiff  proved  the  execution  of 
a  written  assignment  to  him  by  Peet  &  Williams,  of  their  claim.  .  .  . 
Plaintiff,  as  a  witness  in  his  own  behalf,  testified  that  the  consideration 
of  the  assignment  to  him  was  a  balance  of  a  grain  account  due  him,  ex- 
ceeding the  amount  of  his  claim  against  the  defendant.  On  cross- 
examination  he  said:  "Peet  &  Williams  owed  me  for  grain  sent  them 
from  Fon  du  Lac.  I  was  then  in  business  at  Fon  du  Lac.  At  the  time 
of  the  arrangement  [assignment]  I  had  two  partners.  I  was  buying 
wheat  on  joint  account  with  R.  M.  Lewis  and  also  my  brother.  .  .  . 
Think  this  wheat  to  Peet  &  Williams  was  sold  on  account  of  Robbins  & 
Lewis.  My  brother  and  myself  have  a  half  interest  in  the  business  of 
that  firm.  I  have  not  credited  anything  to  Peet  &  Williams  on  our  com- 
pany books  on  account  of  this  claim.  I  was  not  to  credit  the  amount 
to  them  until  collected.  "  The  account  assigned  to  plaintiff  was  in  the 
following  form: 

"  1863.  H.  Deverill.  Dr. 

Nov.      To  100  bbls.  flour  marked  Eclectic  Mills  XXX.,  and  shipped  to 

your  order,  Green  Bay $480.00 

To  interest  on  $480.00,  30  days 300      I 

$483.00       ^  (X^ 
The  assignment  was  as  follows:  ^ 

"For   full  value   paid  us  in   hand,  we  hereby  bargain,  sell  and  assign  the  fore-      ' 
going  account   to  A.  Robbins,   guaranteeing  $483   due  on   the  same.     Neenah, 
Dec.  2,  1863.     .     .  (Signed)  Feet  &  Williams."        y 

The  defendant  moved  for  a  non-suit  on  the  grounds,  i.  Thatj)laintifi  ^  iv*' 
had  not  shown  anv  interest  in  the  demand  sued,  except  in  connection 
with  his'co^partners.    2.  That  the  evidence  did  not  sustain  the  complaint. 
"3.    That  the  assignment  was  void  because  it  had  not  been  stamped 
as  required  by  law.     Motion  denied.   .   .   .  The  court  instructed  the  jury 
that  ' '  the  answer  admitted  the  delivery  of  the  flour,  and  its  accept- 
ance by  the  defendant;  that  an  existing  indebtedness  of  the  assignor  of  a  •    /Q  P  ^ 
thing  in  action,  in  which  the  plaintiff  is  interested  as  an  entire  or  parti 
owner  of  the  same,  is  a  sufficient  consideration  for  the  assignment  of  the     /Jf/ 
account ;  and  that  there  need  be  no  consideration  for  the  assignment  to 
enable  the  plaintiff  to  maintain  an  action  as  assignee  of  an  account, 
unl€8S"guch  aij.'^igiiinent  in  some  way  interferes  with  some  defence  tc| 
the  action  upon  such  account  in  the  narne~of  such  assignee. ' ' 


1   , 


C(fl 


•  isr 


rv* 


438  IN  WHOSE  NAME  THE  ACTIOX  SHOULD  BE  BROUGHT. 

Verdict  and  judgment  for  the  plaintiff;  and  the  defendant  appealed.' 

C.  Coolbaugh,  for  appellant. 

Moses  Hooper,  for  respondent.'-^ 

Dixon,  C.  J.     .     .     ? 

The  only  remaining  question  is  as  to  the  plaintiff's  interest  in  the 
cause  of  action  proved,  and  his  right  to  sue  in  his  own  name  alone. 
The  statute  is  imperative,  that  every  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest  except  as  therein  otherwise  provided. 
R.  S.  ch.  122,  sec.  12.  The  only  exception  claimed  to  be  applicable 
here,  is  that  found  in  section  14,  that  a  trustee  of  an  express  trust  may 
sue  without  joining  with  him  the  person  for  whose  benefit  the  action  is 
prosecuted.  The  proof  is,  that  the  plaintiff  is  not  sole  owner  ofjthe 
demand  sued  upon.  It  belongs  to  the  firm  of  Robbins  &_Jvewis,  com- 
posedlsTTEe^pTaintiff,  his  brother,  and  one  Lewis.  The  plaintiff  and 
his  biULiitfi  Imvid  bhe-hali  interest,  and  Lewis  the  other.  The  demand 
^l^as  transferred  to  the  plaintiff  alone  by  words  of  absolute  assignment, 
*j^  '**^  no  trust  being  expressed  ;  but,  as  the  plaintiff  testifies,  he  holds,  it 
9J^  nevertheless  in  trust  for  the  firm.  It  was  received  on  account  of  a  debt 
due  the  firm  from  Peet  &  Williams,  the  assignors.  Uppn  these  facts  it 
seems  to  me  the  plaintiff  can  not  maintain  the  action,  ^^e  is  not  the 
real  party  in  interest,  nor  the  trustee  of  an  express  trust,  within_the 
meaning  of  the  statute.  His  brother  and  Lewis  should  have  been  j oined 
as  co-plaintiffs.  He  is  not  the  trustee  of  an  express  trust,  because  no 
such  trust  appears  from  the  assignment,  and  none  is  shown  to  exist 
between  himself  and  his  co-partners  by  virtue  of  any  other  instrument. 
In  order  to  constitute  a  trustee  of  an  express  trust,  as  I  understand  the 
statute,  there  must  be  some  express  agreement  to  that  effect,  or  some- 
thing which  in  law  is  equivalent  to  such  an  agreement.  The  case  of 
factors  and  mercantile  agents  may  or  may  not  constitute  an  exception, 
under  the  custom  and  usage  of  merchants.  Grinnell  v.  Schmidi,  2 
Sandf.  (S.  C),  706.  But  in  every  other  case,  thejtrust  must,  I  think, 
be  expressed  by  some  agreemfri-  "^  tVip_pa.T±i.eA^^tiQt  nereftftariU^  per- 
haps, in  writing,  but  either  written  or  verbal  according  to  the  nature 
of  the"traiisacUQn!  In  this  case  no  agreement  is  shown  that  the  plain- 
tiff was  to  take  or  hold  as  trustee,  and  that  he  is  a  trustee  results  merely 
from  other  circumstances.  It  is  implied  from  the  facts  of  partnership 
and  that  the  plaintiff  received  the  assignment  on  account  of  a  debt  due 
the  firm.  If  it  is  not  purely  a  case  of  implied  trust,  as  distinguished 
from  an  express  trust,  then  I  am  at  a  loss  to  conceive  of  one ;  and  to 
hold  theplaintifi  to  be  a  trustee  of  an  express  trust,  would,  in  my  judg- 
ment, be  a  palpable  disregard  of  the  statute  and  violation  of  the  inten- 
tion of  the  legislature.  I  think,  therefore,  that  the  court  should  have 
granted   the   defendant's    motion   for   a   nonsuit,  and  have   given  the 

1  Several  passages  in  the  statement  of  the  case  are  omitted. 

2  The  arguments  are  omitted. 

3  Part  of  the  opinion,  on  other  points,  is  omitted. 


RCJHHINS  Z'.  DEVERILL. 


439 


instruction  asked  upon  this  point,  unlesstlie  objection  was  waived  by 
tlie  omission  ot  the  defendant  to  take  itby  answer. 

That  if  was  so  waived  was  very  clear,  and  the  only  diflSculty  I  have 
had  about  the  question  has  arisen  from  the  manner  in  which  the  evi- 
dence was  or  migiit  have  been  given.  If  the  evidence  of  the  interest 
dt'  the  co-partrK;£S  ot  the  plalntitfwas,  or  could  be  assumed  to  have  been, 
given  without  objection  on  the  part. of  the  pTamtiflF.  then  I  seriously 
question  whether  the  defendant  ought  not  to  have  the  same  benefit 
frohi  li:  as  li  tll<^  Obiection  of  a  want  oi  proper  parties  had  been  taken 
by  answer!  Lewando  v.  Dunham,  i  Hilt.  114,  seems  to  be  a  decision 
to  this  etfect ;  and  I  question  whether  it  would  not  be  so  in  analogy  to 
the  rule  held  in  New  York,  that  where  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  and  the  defendant  neither 
demurs  nor  takes  objection  at  the  trial,  he  can  not  afterwards  do  so  on 
appeal.'  If  the  evidence  of  the  plaintiff's  want  of  interest  had  been 
received  without  objection,  and  no  motion  to  expunge  had  been 
made  or  instruction  asked  by  him,  and  the  defendant  had  prevailed, 
and  the  plaintiff  appealed  on  the  ground  that  the  defence  was  not  set 
up  in  the  answer,  it  would  seem  that  he  would  have  been  concluded 
by  his  silence  at  the  trial,  and  the  objection  could  not  have  been  taken 
for  the  first  time  in  this  court.  But  such  is  not  the  case  here.  The 
defendant,  notwithstanding  the  admission  of  evidence,  was  unsuccess- 
ful. His  motion  for  a  nonsuit  was  denied,  the  instruction  refused,  and 
he  appeals  for  that  reason.  The  question  then  is,  whether  it  can  be 
assumed  that  the  evidence  was  received  without  obiection  on  the  part 
oTlTn^  plaintiff  T  think  itjan  not.  On  the  contraryJTthink  the  pre- 
sumption  is  that  it  was  objected  to.  As_alread£^pbsery ed-,. the  evidence 
was  clearly  inadmissable'  under  the  answer.  The  defect  of  parties 
plaint'iH,  not  appearing  by  the  complamt,  must  have  been  taken  by 
answer  ;  and  not  having  been  so  taken,  the  objection  was  waived.  R. 
v*-.  ch.  125,  sees.  5,  8,  9  ;  Cord  v.  Hirsch,  17  Wis.  403  ;  Gundry  v. 
Vivian,  id.  436;  2  Whit.  Pr.,  §  171,  and  cases  cited.  Such  waiver  is 
absolute,  subject  only  to  the  power  of  the  court  to  order  other  parties 
to  be  brought  in  when  necessary  to  a  complete  determination  of  the  con- 
troversy, and  to  the  right  of  the  defendant  to  object  at  the  trial  in  cases 
where  the  defect  or  misjoinder  is  not  formal  in  its  nature,  but  goes 
directly  to  the  merits,  as  affecting  the  rights  of  the  plaintiff  to  maintain 
the  action.  Whit.  Pr.,  ibidem.  Here  there  is  no  necessity  for  bring- 
ing in  other  parties.  The  legal  title  is  vested  in  the  plaintiff,  and  a; 
recovery  and  satisfaction  by  him  will  discharge  the  defendant  from  all 
further  liabilities.  The  defect  is  merely  formal,  and  does  not  go  to  the 
merits.  The  cause  of  action  proved  corresponds  entirely  with  that 
alleged  in  the  complaint.     The  defendant  could  not,  therefore,    object 

1  Citing.  Mosselman  v.  Caen,  34  Barb.  65;  S.  C.  21  How.  Pr.  248;  Pope  v.  Dinsmore,  8  Abb. 
R.  429;  Carley  v.  Wilkin.s,  6  Barb.  557;  Hunt  v.  Bloomer,  13  N.  Y.  341;  Johnson  v.  Whitlock, 
id-  345;  Bowdoiu  v.  Coltnan,  6  Duer,  186. 


(/%/aA 


440  IN  WH03E  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

on  the  ground  of  variance  or  defect  of  proof.  Hence  the  defect  of  par- 
ties was  absolutely  waived,  and  the  evidence  wholly  inadmissable  under 
the  pleadings,  and  being  so,  I  think  the  presumption  is  that  it  was 
objected  to.  Or  if  this  is  not  so,  then  I  am  confident  that  the  contrary- 
presumption  can  not  be  entertained,  that  the  plaintiff  did  not  object, 
which  is  necessary  before  the  defendant  can  have  the  benefit  of  the 
facts  proved,  the  same  as  if  he  had  stated  them  in  his  answer.  The  bill 
of  exceptions  is  the  defendant's,  not  the  plaintiff's,  and  if  the  plaintiiF 
had  objected  his  objections  could  not  appear.  Ktiox  v.  Cleveland,  13 
Wis.  245.  But  if  it  can  be  assumed  that  he  did  not  object  at  the  time 
the  testimony  was  offered,  it  seems  to  me  that  it  can  not  upon  the  motion 
for  nonsuit,  and  when  the  instruction  was  asked.  The  defendant  moved 
for  a  nonsuit  upon  this  distinct  ground,  among  others,  which  motion 
was  successfully  resisted  by  the  plaintiff.  May  it  not  fairly  be  pre- 
sumed that  the  court  denied  the  motion  for  the  reason  that  the  evidence 
had  been  improperly  admitted,  and  should  be  disregarded  ?  And  may 
not  the  instruction  have  been  refused  for  the  same  reason  urged  by  the 
plaintiff  or  adopted  by  the  court  ?  It  appears  to  me  to  be  a  fair  pre- 
sumption in  either  case.  In  Durgan  v.  Ireland,  14  N.  Y.  322,  it  was 
held  not  to  be  error  in  the  judge  in  his  final  ruling,  which  determined 
the  verdict,  to  disregard  evidence  which  had  been  improperly  received, 
without  any  subsequent  order  to  expunge  it.  See  also,  Jackson  v. 
Whedon,  i  E.  D.  Smith,  141. 

For  these  reasons  I  think  the  judgment  of  the  circuit  court  must  be 
affirmed. 

Downer,  J. — The  majority  of  the  court  are  of  the  opinion  that  the 
only  way  that  the  defect  of  parties  plaintiff  could  have  been  taken 
advantage  of  was  by  demurrer  or  answer  ;  and  if  not  taken  in  that  way 
the  defect  was  waived.  And  it  is  immaterial  whether  the  proof  of  the 
interest  of  other  parties  was  objected  to  by  the  plaintiff  at  the  time  it 
was  received  or  not.  Our  statute  respecting  appeals  differs  in  this 
respect  from  that  of  New  York.  We  agree  with  the  Chief  Justice  in 
affirming  the  judgment,  but  not  in  all  his  reasoning.  We  express  no 
opinion  as  to  whether  the  plaintiff  is  the  trustee  of  an  express  trust  within 
the  statute,  or  is  the  real  party  in  interest,  so  as  to  sue  in  his  own  name. 

By  the  Court. — The  judgment  is  affirmed.' 

1  "The  defendant's  counsel  offered  to  prove  that  the  plaintiff  did  not  own  the  claim  in 
suit.  Objection  was  made  that  this  was  not  set  up  in  the  answer  and  the  court  sustained  the 
objection.  This  ruling  was,  we  think,  correct.  The  pleadings  admitted  that  the  bonds  were 
received  by  the  defendant  from  or  on  the  order  of  the  plaintiff,  and  the  only  dispute  was  as 
to  the  terms  upon  which  they  were  delivered.  In  the  absence  of  any  averment  of  title  in  a 
third  person,  with  which  the  defendant  connected  himself,  or  of  a  plea  that  the  plaintiff  was 
not  the  real  party  in  interest,  the  evidence  was  clearly  inadmissible."— /'<?>'  Rapallo,  J.,  in 
Smith  V.  Hall  (1876),  67  N.  Y.  48,  50. 

See  also,  Giraldin  v.  Howard  (1890),  103  Mo.  40,  45:  "No  question  was  raised  in  the  court 
below  by  demurrer,  answer,  on  trial  or  in  the  motion  for  a  review,  that  the  suit  was  not  be- 
ing prosecuted  in  the  name  of  the  real  party  in  interest,  and  the  objection  made  for  the  first 
time  in  this  court  comes  too  late  to  avail  anything."— /V>-  Brace,  J. 


HERVTU  AND  ANOTHER  V.  SJIITH.  441 

HERETH  AND  ANOTHER  v.  SMITH. 

Supreme  Court  of  Indiana,  November  Term,  1870. 

[33  /nd.  514.] 

Appeal  from  the  Marion  Civil  Circuit  Court, 

/.  £.  A/cDona/d,  A.  L.  Roache,  E.  M.  McDonald,  J.  M.  Butlet ^ 
P.  IV.  Bartholomew,  A.  G.  Porter,  B.  Harrison,  IV.  P.  Fishback,  for 
appellants.  /^Jtt^ 

F.  Rand  and  R.  H.  Hall,  for  appellee. 

Worden,  J. — This  was  an  action  by  Mary  Smith  against  the  appel- 
lants upon  a  .promissory  note  executed  by  the  latter  to  one  S.  B. 
Hartman  and  by  him  indorsed  to  plaintiff.  Issue,  trial,  verdict,  and 
judgment  for  the  plaintiff  for  the  amount  of  the  note  and  interest. 

The  record  does  not  contain  the  evidence,  or  the  instructions  given, 
or  those  refused.  There  is  no  question  before  us  properly,  except  that 
arising  upon  the  fourth  paragraph  of  the  answer,  to  which  a  demurrer 
was  sustained  and  exception  taken.     That  paragraph  is  as  follows  : 

"And  for  a  further  answer  herein,  the  said  defendants  Hereth  and  Langsdale  say 
that  they  admit  the  execution  of  the  note  in  the  said  complaint  mentioned,  but 
they  say  that  the  plaintiff  ought  not  to  have  and  maintain  said  action  against 
them,  because  they  say  that  said  plaintiff  is  not  the  real  plaintiff  [party]  in  in- 
terest;  that  she  has  no  interest  whatever  in  said  note,  and  that  said  note  belongs 
to  one  .     Wherefore  defendants  pray  judgment  for  costs,  "  &c.  ~* 

All  pleadings  in  bar  of  an  action  resolve  themselves  into  two 
classes,  viz.  :  those  in  denial,  .and  those  by  way  of  confession  and 
avoidance.  The  above  paragraph  can  hardly  be  held  good  as  a  denial 
of  the  cause  of  action,  for  the  reason  that  it  does  not  controvert  or 
deny  any  allegation  of  the  complaiijt.  It  expressly  admits  the  making 
of  the  note,  and  does  not  deny  the  indorsement  thereof  to  the  plaintiff, 
as  alleged  in  the  complaint.  Regarded  as  an  answer  by  way  of  con- 
fession and  avoidance,  it  must  be  taken  to  admit  expressly  or  impliedly 
the  making  of  the  note  and  the  indorsement  thereof  to' the  plaintiff, 
as  alleged  in  the  complaint ;  and  admitting  those  facts,  the  inquiry 
arises,  what  new  facts  are  alleged  in  avoidance  of  the  legal  effects  of 
the  facts  thus  admitted  ?  It  alleges  that  the  plaintiff  is  not  the  real 
party  in  interest,  &c. 

The  legal  qualities  of  the  answer  will  not  be  changed,  but  may  be 
illustrated,  by  putting  it  in  this  wise :  The  defendants  admit  .the 
making  of  the  note,  and  that  it  was  duly  indorsed  to  the  plaintiff  by 
the  payee  thereof,  as  alleged  in  the  complaint  ;  but  still  they  say  she 
does  not  own  it,  but,  on  the  contrary,  it  belongs  to  some  one  else,  and 
she  is  not  the  real  party  in  interest.  But  if  the  note  was  thus  indorsed  "^ 
to  the  plaintiff,  why  does  she  not  own  it  ?  whv  is  she  not  the  re 


1/t 


r 


442  IN  whose;  name  the  action  should  be  brought. 

party  in  interest  ?  and  how  did  it  become  the  property  of  some  one 
else  ?  The  pleading  fails  to  answer  any  of  these  queries,  or  to  state 
any  facts  from  which  the  assumptions  are  drawn.  No  new  facts  what- 
ever are  stated  that  avoid  the  legal  effect  of  the  facts  thus  admitted. 
iH^"""^  p|""-^irr  T'^  h-^*^  npPflS  the  citation  of  no  authorities,  but  for 
convenience  of  reference  we  cite  the  following  :  Garrison  v.  Clark, 
I  i^TncT.  369  ;  Elder  v.  Smith,  16  Ind.  466  ;  Rayinond  v.  Pritchard,  24 
Ind.  318 ;   Lewis  :■.  Sheamayi,  28  Ind.  427. 

The  judgment  below  is  affirmed,  with  two  per  cent,  damages  and 
costs.' 


BROWN  V.   CURTIS  ET  AL. 

Supreme  Court  oe  California,  March  24,  1900. 

[ Cal. ]2 

The  facts  appear  in  the  opinion. 

From  a  judgment  in  favor  of  the  plaintifif,  Brown,  the  defendants 
appeal. 

William  P.   Veuve,  for  appellants. 

H.   V.  Morehouse,  for  respondent. 

Chipman,  C. ^Action  for  the  value  of  certain  nursery  trees  sold  and 
delivered  to   plaintiff's  assignors.      Defendants   answered  by  general 

1  See  also,  Curtis  v.  Gooding  (1884),  99  Ind.  45,  52;  Pixley  v.  Van  Nostern  (1884),  100  Ind.  34; 
Cottle  V.  Cole  {1S66),  20  Iowa,  481: ''  Thejudgment  sued  upon  was  rendered  in  favor  of  one  ClufF. 
The  present  plaintiff  distinctly  alleged,  in  his  petition,  '  that,  after  the  rendition  of  said  judg- 
ment, the  said  Cluff  sold  and  assigned  said  judgment  to  the  plaintiff  in  writing,  of  which 
assignment  the  following  is  a  true  copy,'  &c.,  setting-  out  the  assignment  in  haec  verba.  The 
District  Court  held  that  an  answer  simply  '  denying  that  the  judgment  had  been  assigned 
by  sai  1  Cluff  to  the  plaintiff,'  was  not  good  pleading,  and  this  holding  was,  under  the  alle- 
gations of  the  petition,  correct.  The  code  system  requires  _/ac/i  and  not  legal  conclusions,  to 
be  pleaded.  The  answer  does  not  d-ny  the  fact  of  the  execution  of  the  written  assignment, 
specifically  alleged  in  the  petition,  nor  does  it  set  out  any  facts  upon  which  the  conclusion, 
that  the  judgment  had  not  been  assigned,  is  based.  The  denial  should  have  been  of  the  facts 
pleaded,  as  the  petition  on  its  face  contained  facts,  which /rzOTayacz>  established  the  assign- 
ment."— Per  Dillon,  J.,  p.  482. 

See  also.  White  v.  Drake  (1877),  3  Abb.  N.  C.  133;  Van  Dyke  v.  Gardner  (1897),  21  Misc. 
542:  "  Under  the  issues  framed  by  the  pleadings  defendant  could  not  show  that  the  plaintiff 
was  not  the  real  party  in  interest,  a^  he  failed  to  allege  the  facts  necessary  to  raise  such  an 
issue.  The  mere  legal  conclusion  '  that  plaintiff  was  not  the  real  party  in  interest '  pleaded 
by  him,  was  not  sufi&cient." — Per  Curiam;  Fitzsimons,  Conlan,  and  Schdchman,  JJ. 

Com-p&rc  Deuel V.  Newlin  (1891),  131  Ind.  40,  41:  "The  second  paragraph  of  the  answer 
averred  in  sub.stance  that  the  note  was,  and  at  all  times  had  been,  the  property  of  the  payee; 
that  the  appellant  [payee's  transferee  and  plaintiff  in  the  action]  had  no  actual  interest  in 
it,  and  that  it  was  transferred  to  him  without  consideration,  for  purposes  of  collection  only, 
and  to  prevent  the  appellee  pleading  as  a  set-off  against  it  certain  indebtedness  due  to  him 
from  the  payee.  A  demurrer  to  this  paragraph  of  answer  was  overruled,  and  this  ruling  is 
assigned  as  error.  The  answer  is  clearl}^  good."— Pc;-  McBride,  J.,  referring  to  Hereth  v. 
Smith,  and  other  Indiana  cases.  On  the  Indiana  doctrine  as  to  the  effect  of  an  assignment 
for  purposes  of  collection,  see  infra. — Ed. 

2  S.  C.  60  Pac.  Rep.  773. 


BROWN  V.   CURTIS  ICT  AL.  44V 

denial,  and  also  set  up  specially,  by  separate  answer,  certain  facts; 
alleging  the  failure  of  plaintiff's  assignors  to  comply  with  the  terms  of 
the  contract  under  which  the  trees  were  delivered.  The  pleadings  were 
not  verified.  The  trial  was  by  a  jury,  and  plaintiff  had  the  verdict. 
Defendants  appeal  from  the  judgment,  and  from  the  order  denying 
their  motion  for  a  new  trial. 

It  is  claimed  by  appellants  that  there  was  no  evidence  introduced  to 
prove  an  assignment  or  transfer  to  plaintiff  of  the  claims  sued  on.  The 
complaint  sets  forth  certain  claims  in  two  counts,  one  of  which  alleges 
the  sale  to  defendants  of  certain  fruit  trees  by  one  H.  H.  Linville,  and 
an  assignment  to  plaintiff  of  the  claim;  and  the  other  count  alleges  a 
sale  by  one  W.  J.  Linville  to  defendants,  and  an  assignment  to  plaintiff. 
The  assignment  in  each  instance,  and  the  denial  thereof,  raised  a  mate- 
rial issue,  which  it  was  incumbent  on  plaintiff  to  establish  by  proof. ^ 
Respondent  contends  that  "the  assignment  is  not  the  cause  of  action, 
but  only  the  right  of  plaintiff  to  sue,"  and  quoting  from  Navigation 
Co.  V.  Wright,  8  Cal.  585,  claims  that  "  the  want  of  legal  capacity  to 
sue  is  a  personal  disability,  and,  if  the  defendant  intends  to  set  up  such 
a  defence,  he  should  state  so  distinctly.  The  general  denial  relates  to 
some  other  facts  alleged  concerning  the  contract.  The  general  issue  is 
not  sufificient," — citing,  also,  White  v.  Moses,  11  Cal.  70;  Ba7tk  of  Shasta 
V.  Boyd,  99  Cal.  604,  34  Pac.  337;  and  some  other  cases.  Respondent 
fails  to  distinguish  between  the  question  of  capacity  and  the  question 
of  right  to  sue.  The  capacity  is  one  thing,  while  the  right  is  quite  an- 
other. The  capacity  may  be  admitted,  but  the  right  must  rest  upon 
proof  of  assignment,  and  must  be  established,  whatever  may  be  the 
capacity  in  which  the  assignee  sues. 

Respondent  calls  attention  to  the  testimony'  which  he  claims  suflSci- 
ently  proved  the  assignment.  It  appears  that  when  Curtis,  one  of 
defendants,  was  testifj-ing  as  a  witness  in  relation  to  certain  correspond- 
ence he  had  with  one  of  the  Linvilles  as  to  the  unsatisfactory^  condition 
of  the  trees,  and  to  arrange  a  meeting,  after  stating  that  the  meeting 
was  put  off,  he  said,  "After  that,  the  next  letter  I  got  from  Linville,  he 
stated  that  he  assigned  his  claim  to  Brown."  It  was  admitted  that 
plaintiff  made  demand  upon  the  defendants  prior  to  the  commencement 
of  the  action.  In  defendants'  special  defence,  the  answer  begins  as  fol- 
lows: "(i.)  That  during  the  years  1893  and  1894,  H.  H.  Linville,  the 
assignor  of  plaintiff,  was  a  nurserj-man, ' '  etc.  This  is  all  that  is  pointed 
out  by  respondent  from  which  the  jury  found  that  the  claims  of  both 
the  Linvilles  were  assigned  to  plaintiff.  If  we  could  regard  the  admis- 
sion that  one  of  the  Linvilles  wrote  to  Curtis  that  he  had  assigned  his 
claim  to  Brown  as  evidence  of  the  fact,  it  would  still  leave  no  admission 
as  to  the  other  claim.  But  we  can  not  regard  it  as  evidence  of  the  fact 
at  all.     There  is  nothing  to  show  that  the  defendants,  or  either  of  them, 

1  Citing,  Re:id  v.  BufTum,  79  Cal.  77,  21  Pac.  555;  Ford  v.  Bushard,  116  Cal.  273,  4S  Pac.  119. 


4-44  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

at  any  time  dealt  with  or  recognized  Brown  as  assignee.  Nor  was  a 
mere  admission  that  Brown  demanded  payment  before  suit  brought  any 
evidence  of  Brown's  ownership  of  the  claims,  or  right  to  sue  upon  them. 
The  statement  in  the  separate  answer  of  defendants  above  quoted  was 
not  an  admission,  and,  if  it  was,  it  was  not  inconsistent  with  the  denial 
of  the  fact  contained  in  the  earlier  part  of  the  answer.  At  most,  it  could 
only  be  regarded  as  describing  the  person  of  Linville.  It  does  not  pur- 
port to  admit  the  assignment,  and  can  not  reasonably  be  given  that 
effect.  Respondent  is  correct  in  stating  that  the  reason  for  requiring 
proof  of  the  assignment  is  to  protect  the  defendant  from  an)-  claim  of 
the  assignor;  but  it  is  not  true,  as  claimed,  that  ' '  when  the  assignor 
takes  the  stand  for  the  plaintiff  and  .  .  .  the  defendant  admits  a 
demand  from  the  assignee,  and  notice  from  the  assignor  that  he  has 
assigned  the  claim  to  plaintiff,  certainly  the  proof  is  sufficient  to  show 
any  assignment. ' '  Brown  may  not  have  had  any  assignment  when  he 
made  the  demand.  Linville  may  not  have  in  fact  assigned  his  claim 
when  he  wrote  he  had  done  so.  It  was  incumbent  upon  Brown  to 
establish  his  right  to  sue,  and  this  necessitated  proof  of  the  assignment 
by  which  alone  he  had  any  such  right.  It  was  as  necessary  for  Brown 
to  prove  this  fact  as  it  was  to  prove  the  indebtedness.  The  fundamental 
error  of  respondent  was  in  assuming  what  he  now  urges  in  his  brief, — 
that  "the  question  of  assignment  only  goes  to  the  capacity  to  sue,  and 
not  to  the  cause  of  action;  and,  therefore,  if  defendants  wish  to  raise 
the  question  of  assignment,  they  must  do  so  by  a  special  defence,  and 
can  not  do  so  by  a  general  denial. " 

The  view  we  have  taken  makes  it  unnecessary^  to  notice  appellant's 
contention  that  the  evidence  may  not  be  the  same  at  the  second  trial. 
It  is  advised  that  the  judgment  and  order  be  reversed,  and  the  cause 
remanded.* 

1  Compare  Dazns  i'.  Presi.  of  D.  &  H.  Canal  Co.  (1888),  109  N.  Y.  47,  51:  "The  pleadings 
put  the  pla  ntifT's  title  in  issue.  .  .  .  Smith  v.  Hall,  67  N.  Y.  48,  is  not  applicable.  In 
that  case  the  defendant,  by  answer,  admitted  that  the  property  in  qviestion  was  received  by 
the  defendant  from  the  plaintifif  and  the  only  dispute  was  as  to  the  terms  on  which  it  was 
received.  Here  the  contention  goes  further,  admitting  no  right  in  the  plaintiff,  the  defend- 
ant denies  his  title."— /%r  Danforth,  J. 


WOOLISCROI'T  V.  NORTON  AND  ANOTHER.  445 


III.       THE  REAL  PARTY  IN  INTEREST  WHEN  THE  ASSIGNMENT  OF  THE 
CHOSE  IN  ACTION  IS  ABSOIvUTE. 

I.     Assignment  before  action  brought. 

Note. — If  the  assignment  of  a  chose  in  action  is  not  only  absohite  but  complete  in  the 
.sense  that  the  assignee  would  have  had  a  full  lej'.al  title  imder  the  rules  of  common  law- 
pleading,  the  cases  make  no  question  as  to  his  right  to  sue  in  his  own  name  under  the  codes. 
But  there  are  many  assignments  which  while  free  from  substantive  limitations  are  not  com- 
plete in  this  procedural  sense.  In  such  cases,  the  older  rules  and  distinctions  have  often 
sought  a  place  in  code  pleading.  The  decisions  which  immediately  follow  have  to  do  with 
these,  and  with  some  other,  distinctions  which,  in  absolute  assignments,  have  been  supposed 
to  affect  the  rule  of  the  codes  requiring  a  civil  action  to  be  brought  in  the  name  of  the  real 
party  in  interest. 

WOOLISCROFT  v.  NORTON  AND  ANOTHER.         / 

Supreme  Court  of  Wisconsin,  January  Term,  1862. 
[15  Wis.  1 98.] 

Appeal  from  the  Circuit  Court  of  Rock  County. 

Action  to  recover  for  work  done  and  material  furnished  by  the 
plaintiff  in  repairing  a  dam  and  raceway.  The  facts,  as  reported,  by  a 
referee,  were  substantially  as  follows  : 

A.  Hyatt  Smith  and  N.  O.  Walker  were  owners  of  land  in  Rock 
County,  and  of  a  dam  erected  thereon  across  Rock  River,  and  of  the 
power  thus  created  ;  Smith  owning  three-fourths  and  Walker,  one- 
fourth,  undivided.  While  they  were  such  owners,  in  1849,  Smith  ex- 
ecuted to  Stevens  &  Older  a  deed  of  a  portion  of  said  land  for  a  mill 
site,  and  for  550  square  inches  of  water  to  be  used  thereon — this  being 
the  first  conveyance  of  any  part  of  said  water  power  by  the  proprietors 
or  either  of  them.  This  deed  contained  a  covenant  by  the  grantees 
that  they  would  pay  their  ratable  share  of  the  expenses  of  keeping  in 
repair  the  dam  and  racewa}^  "  in  proportion  to  the  number  of  square 
inches  of  water  by  them  owned  or  used  ;  ' '  and  that  on  a  failure  by  them 
to  make  such  payments,  the  grantor  should  have  the  right  to  enter  upon 
said  lot,  and  to  shut  off  therefrom  all  said  water,  until  such  paj'ments 
should  be  made ;  and  for  that  purpose,  but  no  other,  all  water-gates 
through  which  such  water  might  pass,  were  declared  to  be  the  property 
of  the  grantors,  their  heirs,  etc.  Subsequently  Older  quit-claimed  his 
interest  in  said  grant  to  Stevens,  who  afterwards,  in  December,  1850, 
received  a  deed  from  Smith  &  Walker  of  additional  land  and  500  square 
inches  more  of  water.  This  deed  contained  a  covenant  \>y  Stevens  simi- 
lar to  that  above  described.  By  mesne  conveyances,  each  containing 
similar  covenants  on  the  part  of  the  grantees,  the  defendants  Norton 
and  Ford  became  equal  owners  in  common  of  the  land  and  the  right  to 
said  1050  square  inches  of  water,  and  were  such  owners  when  the 
repairs  mentioned  in  the  complaint  were  made. 


446 


IN  whose;  name  the  action  should  be  brought. 


In  1857,  Smith  &  Walker  employed  the  plaintiflF  to  make  certain 
repairs  mentioned  in  the  complaint ;  and  he  did  work  and  furnish 
materials  to  the  value  of  $1,630.62,  and  this  amount  was  proportioned 
among  the  several  owners,  lessees,  and  users  of  the  water  in  accordance 
with  the  rule  above  stated— the  sum  of  $221.69  being  apportioned  to  the 
defendants. 

The  referee  also  found  that  neither  at  the  time  when  the  work  was 
done  and  the  materials  furnished  by  the  plaintiff,  nor  afterwards,  had 
any  formal  assignment  or  transfer  of  the  assessments  been  made  to  the 
plaintiff  by  the  owners  of  said  dam  and  water  power,  but  the  same  were 
handed  over  to  him  by  A.  Hyatt  Smith  with  directions  to  collect  them 
and  apply  the  money  to  the  payment  of  said  claim  for  repairs.  The 
referee  found  also  that  Norton  &  Ford  had  a  valid  counterclaim  against 
the  plaintiflF  for  $36.34. 

The  circuit  judge  held,  upon  these  facts,  that  the  covenant  for  repairs 
by  the  grantees  of  Smith  &  Walker  ran  with  the  land,  and  was  bind- 
ing upon  the  defendants  ;  and  that  there  was  an  implied  promise  on  the 
part  of  the  defendants  to  pay  the  plaintiflF  their  portion  of  the  expense 
of  repairs  made  by  him.,  when  ascertained  according  to  the  rule  pro- 
vided in  the  deed.' 

H.  K.   Whiton,  for  appellant. 

KrwMton,  Prichard  •^  Jackson,  for  respondents." 

By  the  Court,  Cole,  J. — It  appears  to  us  that  this  suit  was  properly 

brought  in  the  name  of  the  plaintiflF.     He  was  employed  to  do  the  work 

^     iiand  make  the  repairs  on  behalf  of  the  proprietors  of  the  water  power ; 


'TP 


►  ,y^    _^the   defendants 


for  repairs,  still  it  was  in  fact  given  to  him  with 
'directions  to  collect  and  apply  the  money  to  ^le  pa3"ment  of  his  claim, 
so  that  realh'  he  is  the  part}^  in  interest.  So  that  the  case  may  be  con- 
sidered as  resting  substantially  on  the  same  grounds  and  controlled  b3' 
the  same  principles  of  law,  as  though  the  proprietors  had  done  the 
work,  and  made  the  assessment  for  repairs,  and  brought  their  suit  for  a 
ratable  compensation.  If  the  action  could  be  sustained  in  the  latter 
case,  we  can  not  see  why  it  can  not  now.-^ 

1  The  reporter's  statement  of  facts  has  been  abridged. 

2  Counsel  for  the  respondents  made  the  following  point  among  others:  "  The  conclusion 
that  handing  to  the  plantiff  the  account  for  the  expenses  apportioned  to  the  defe:;dants, 
operated  as  an  assignment  of  the  claim  is  not,  if  correct,  sufficient  to  enable  the  plaintiff  to 
maintain  the  action.  To  recover,  the  action  should  be  predicated  upon  the  covenant,  and 
allege  the  refusal  to  pay  as  a  breach;  but  to  maintain  such  an  action,  the  plaintiff  must  show 
that  the  covenantees  had  assigned  the  covenant  to  him." 

3  Part  of  the  opinion,  dealing  with  other  points,  is  omitted.  The  judgment  below  was  re- 
versed on  other  grounds,  and  the  cause  remanded  for  fur,  her  proceedings  in  accordance  with 
this  opinion. 


LONG  V.   HEINRICH.  447 

LONG  :'.  HEINRICH. 

Supreme  Court  of  Missouri,  October  Term,  1870. 

[46  Mo.  603.] 

Error  to  Second  District  Court. 

Conger  &  Reynolds,  for  plaintiff  in  error,  defendant  below.' 

Ferryman  &  Duming,  Van  Allen  &  Wing,  and  Relfe,  for  defendant 
in  error,  plaintiff  below. ^ 

Bliss,  J. — James  Long  &  Co.  advanced  $300  for  defendant  upon  his 
written  request,  and  the  plaintifif,  as  assignee  of  James  Long  &  Co., 
brings  his  suit  to  recover  a  balance  due  upon  said  advance. 

No  defence  upon  the  merits  was  made  to  the  claim,  the  defendant  only 
insisting  that  it  was  not  assignable,  and  that  the  plaintiff  could  not 
sue  in  his  own  name.  For  this  view  he  relies  upon  the  fact  that,  in  the 
revision  of  1865,  chapter  21,  entitled  "Bonds,  notes,  and  accounts," 
found  in  the  revision  of  1855,  was  omitted  ;  and  section  4,  providing 
for  the  assignment  of  accounts,  is  nowhere  re-enacted.  But  this  section 
was  wholly  unnecessary.  Ever  since  the  adoption  of  the  code  in  1849 
it  is  necessary  that  every  action  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  and  if  one  owns  a  contractor  account  not  assignable 
at  common  law,  he  should  bring  suit  in  his  own  name. 

Gamble,  J.,  in  Walker  v.  Mauro,  18  Mo.  564,  says:  "The  effect  of 
our  new  code  of  practice  in  abolishing  the  distinction  between  law  and 
equity,  is  to  allow  the  assignee  of  a  chose  in  action  to  bring  suit  in  his 
own  name  in  cases  where,  by  the  common  law,  no  assignment  would 
be  recognized."  This  opinion  was  given  in  1853,  and  before  the  enact- 
ment of  said  section  4,  now  dropped  from  the  statutes. 

The  judgment  of  the  District  Cozirt  is  affirmed. 

The  other  judges  concur. 

1  Counsel  for  plaintiff  in  error  submitted  the  following  points:  At  common  law  this  account, 
being  a  chose  in  action,  was  not  assignable.  It  is  not  made  assignable  by  our  statute.  The 
only  statutory  provision  we  have  ever  had  on  this  subject  was  contained  in  ssction  4,  chap- 
ter 21,  R.  C.  1855.  Whatever  of  that  chapter  it  was  intended  to  retain  was  placed  in  the  revi- 
sion of  1S65.  IVagn.  Stat.  239,  note  i.  This  was  omitted  (§  4,  ch.  21),  and  was  subsequently 
repealed.     IVagn.  Stat.  896,  gg  2,  3. 

2  The  argument  for  defendant  in  error  is  omitted. 


448  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


GREEN  V.   MARBLE. 

"^J^  '        Supreme  Court  of  Iowa,  December  Term,   1873. 

^^  [37  J^owa,  95.] 

Action  at  law.  One  Wilson  executed  his  promissory  note  to  defend- 
ant, who,  after  maturity,  transferred  it  to  Groat,  and  executed  a  guar- 
anty in  the  following  words  : 

"I  guarantee  the  payment  of  the  within  note  within    thirty  days   from   the  17th 
day  of  October,  1870.  Elia*  Marble." 

Before  the  expiration  of  thirty  days  Groat  orally  assigned  the  note_and 
guaranty  to^laintiff. 

"  rhere"was  a  trial  to  the  court,  with  judgment  for  plaintift.     Defend- 
ant appeals. 

E.  P.  Baki'r  and  E.    IV.  Eastma?i,  for  the  appellant. 

/?tce  &^  Mojjfitt  and  H.  C.  Hemenway,  for  the  appellee. 

Beck,  Ch.  J.  —  i.  The  defendant  insists  that  as  the  note  is  not 
indorsed  to  plaintiff,  and  the  guaranty  is  not  negotiable,  recover}-  can 
only  be  had,  if  at  all,  in  equity.  But  as  no  objection  was  made  in  the 
court  below  as  to  the  form  in  which  the  suit  was  prosecuted,  an  error 
in  that  respect  will  avail  the  defendant  nothing  in  this  court.' 

2.  The  verbal  assig-nment  nf  \]^e  note  and  g"uarantv  transferred  to 
plaintiff  the  property  in  the  choses  in  action  of  which  these  instru- 
ments are  the  evidence"  Flaintill  thus  became  the  real  party^  in  inter- 
ei»t^ — Lll^  oriFentitled  to  the"cHose  in  action — and  may  maintain  a  suit 
ifnTis  own  name  to  recover  upon  the  guaranty.^ 

"nTejudgment  of  the  circuit  court  is  sustained  by  the   facts  and  the 
law  of  the  case  ;  let  it  be  Affirmed." 

1  Rev.,  §§  2613,  2616,  2619;  Taylor  v.  Adair  &  Goff,  22  Iowa,  279;  Van  Orman  v.  Merrill,  27 
Iowa,  476;  Hatch  v.  Judd,  29  Iowa,  95. 

2  Citing,  Rev.,  §  2757;  McDowell  v.  Bartlett,  14  Iowa,  157;  Conyngham  v.  Smith,  et  al,  16 
Iowa,  471;  Younker  v.  Martin,  18  Iowa,  143;  Cottle  v.  Cole,  20  Iowa.  482;  Rice  v.  Savery,  22 
Iowa,  470;  Pearson  v.  Cumings,  28  Iowa,  344. 

3  See  Andrews  v.  McDaniel  (1S73),  68  N.  C.  385:  "The  real  owner  of  a  negotiable  note,  not 
indorsed,  is  the  proper  person  to  sue  for  its  recovery,  under  section  55  of  the  code  of  civil 
procedure."  Schmier  v.  Fay  (1873),  12  Kan.  184.  When  a  note  payable  in  work  has  been 
sold  and  delivered  to  a  third  party,  the  latter  can  maintain  an  action  thereon  in  his  own 
name. 

Compare  also  the  remarks  of  Dillon,  J.,  on  the  distinction  between  negotiability  and  as- 
signability, in  Younker  v.  Martin  (1864),  iS  Iowa,  143,  145:  "  Bythe  law  merchant,  the  note  in 
suit  not  having  been  indorsed  io  Royston,  he  could  not  have  brought  suit  thereon  in  his  own 
name,  although  he  was  the  beneficial  owner;  but  the  action  must  have  been  brought  in  the 
name  of  the  payee.  Franklin  Bank  v.  Raymond,  3  Wend.  69,  71,  perMarcy,  J.;  Chitty  on  Bills, 
5  Am.  ed.  227;  2  Parsons  on  Notes  and  Bill.s,  44,  52,  and  cases  cited  in  note.  But  this  is  changed 
by  chap.  117  of  the  Rev.,  gg  2757,  2760.  The.se  sections  would  g^ve  Ralston,  as  the  equitable 
assignee  and  real  owner  of  the  note,  a  right  to  sue  in  his  own  name,  but  without  prejudice 
to  any  set-off  or  other  defence  existing  before  notice  of  the  assignment.  Notes  are  choses  in 
action,  that  is,  things  which  must  be  recovered  by  action  at  law;  and  like  all  other  things  in 
action,  they  may  be  a.ssigned,  and  the  title  will  pass  without  indorsement.     Houghton  v. 


CUSHMAN  :'.   WELSH.  449 

CUSHMAN  :■.   WELSH.  ^luf^"^      tjJ^ 

Supreme  Court  op  Ohio,  December  Term,  1869.  iJ-^^       y     ^  {^ 
[.9  O.  S.  536.]  ^^^  ./V 

Error  to  the  court  of  common  pleas  of  Union  County.     Reserved  in     '    '^ 
the  district  court. 

At  the  May  term,  1867,  of  the  common  pleas  of  Union  countj-,  the 
defendant  in  error  obtained  a  judgment  against  the  plaintiffs  in  error 
for  $523.50.  The  judgment  was  obtained  by  confession  under  a  warrant 
of  attorney  annexed  to  the  note  on  which  it  was  rendered.  No  process 
was  issued  against  the  defendants  below,  and  they  had  no  notice  of  the 
proceeding  until  after  the  judgment  was  rendered. 

The  note  is  made  payable  to  Rickley  &  Brother,  or  order.  Following 
the  note,  and  preceding  the  signature  of  the  makers,  there  is  attached 
to  the  note  a  warrant  of  attorney,  empowering  any  attorney  of  any 
court  of  record  to  appear  for  the  makers  of  the  note  in  any  court  of 
record  in  the  State  of  Ohio,  and  waive  the  issuing  and  service  of  pro- 
cess against  them,  and  to  "confess  judgment  in  favor  of  the  legal 
holder  "  of  the  note  against  them,  for  the  amount  due  thereon.  To  the 
note  and  warrant  of  attorney  are  attached  the  signatures  and  seals  of 
the  plaintiffs  in  error,  defendants  below. 

At  the  same  term  of  the  court  at  which  the  judgment  was  rendered, 
the  plaintiffs  in  error  filed  their  motion  to  set  aside  the  judgment  on 
the  ground  that  the  court  had  no  jurisdiction  of  the  defendants  in  the 
case.  The  court  overruled  the  motion  ;  and  the  defendants,  now  plain- 
tiffs in  error,  excepted,  and  filed  their  petition  in  error  in  the  district 
court,  and  assigned  for  error  the  overruling  of  their  motion. 

The  case  was  reserved  by  that  court  for  decision  here. 
John  B.  Coats,  for  plaintiffs  in  error. 

M.  C.  Lawrence,  for  defendant  in  error.' 

Dodge,  5  Bosw.  326;  5  Id.  427.  These  sections  simply  substitute  the  rule  of  courts  of  equity 
which  permitted  the  assignee  of  a  chose  in  action,  he  being  in  fact  the  real  owner,  to  pro- 
ceed in  his  own  name.  (2  Parsons  on  N.  &  B.,  supra;  Edw.  on  Bills,  251,  note  286,  and  cases.) 
But  they  do  not  otherwise  enlarge  the  substantial  rights  of  such  assignee. 

"  The  judgment  of  the  court  below  overlooks  the  radical  distinction  between  the  indorse- 
ment (using  the  word  in  its  proper  sense)  and  the  assignment  of  a  negotiable  note.  In  a 
legal  as  well  as  mercantile  sense,  and  within  the  meaning  of  g  1794  of  the  Revision,  above 
cited,  a  note  payable  to  order,  to  be  negotiated  by  indorsement,  must  be  indorsetl  by  the 
payee  by  proper  writing,  and  by  subsequent  indorsers,  if  any,  to  the  holders.  And  without 
such  an  indorsement  the  holder  can  not  insulate  himself  from  prior  equities.  When  thus 
indorsed  for  value,  before  due,  and  without  notice,  the  holder  stands  free  from  all  equities 
between  the  original  parties.  It  is  only  by  the  law  merchant,  and  cur  statute  recognizing 
and  adopting  it,  this  being  founded  upon  the  policy  of  sustaining  the  credit  of  negotiable 
paper,  that  an  Indorsee  may  recover  when  the  payee  may  not.  3  Kent  Com.  79.  But  where 
such  a  note  is  transferred  without  indorsement,  the  holder,  although  he  obtains  title,  is  not 
an  indorsee,  but  an  assignee,  the  assignee  of  a  chose  in  action,  and,  as  such,  liable  to  any 
'defence  or  set-off  exising  before  notice  of  the  assignment.'  Rev.,  52760;  Chamberlain  v. 
Gorham,  20  Johns.  144,  and  authorities  above  cited." — Ed. 

1  The  arguments  are  omitted. 


450  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

Day,  J.— The  question  in  the  case  is  made  on  the  order  of  the  court, 
overruling  a  motion  to  set  aside  a  judgment  rendered  against  the  plain- 
tiffs in  error,  on  a  sealed  note  or  bill,  by  virtue  of  a  warrant  of  attorney. 
The  ground  of  the  motion  was,  the  alleged  want  of  jurisdiction  of  the 
court  below  of  the  defendants  in  the  case.  The  court  had  no  jurisdic- 
tion of  them,  other  than  that  obtained  through  the  warrant  of  attorney 
attached  to  the  note  upon  which  the  judgment  was  rendered. 
'  The  question,  then,  is.  whether  the  confession  under  the_:warraiLt  of 

*^  attorney  gave  the  court  jnrisdirtion  of  the  defendants  below,  to  render 

judgment  on  the  note  ap^ainst  thpin  in  favor  ^f  the  pi ai ritjff  below . 
'^The  note  is  made  payable  to  ' '  Rickley  &   Brother  or  order. "     It  is 
under  seal,  and  was  not  negotiated  by  indorsement,  as  authorized  by 
the  statute.     It  is  averred,  however,  that  the  plaintiff  below  became  the 
owner  and  holder  of  the  note  by  purchase  of  Rickley  &  Brother,  and 
paid  them  therefor  the  full  amount  of  the  note.     Though  he  might,  as 
the  owner  of  the  note  in  equity,  have  brought  an  action  thereon,  under 
*-4^the  provisions  of  the  code,  in  his  own  name,  against  the  makers  of  the 
*  *|l*^  note,  it  doesjioJLio1lnw:J:hst  be_.coald  ohtaiiLiJidg.m£nt  by  confession  on 
iAA  their  warrant  of  attorney  attached  to  the  note.    That  depends  _on  the 

•    <*^        extent  ot  the  power  conferred  by  the  warrant.     The  attorney  can  do 
-u*^'    nothing  more  than  execute  the  power  conferred  by  his  warrant ;  more- 
'^       over,  "all  authorities  of  this  sort  must  be  strictly  pursued."     Cowie 
'fi^'i.u^*-'  ^'-  Allaway,  8   Durnf.  &  East,  257.     "Indeed,   formal  instruments  of 
JIC'  *  j^''  this  sort  are  ordinarily  subjected   to   a  strict  interpretation,  and  the 
^   **^ljJ^jauthority  is  never  extended  be}' ond  that  which  is  given   in  terms   or 
/\^ .    which  is  necessary  and  proper  for  carrying  the  authority  so  given  into 
•.  t^  full  efiect."     Story  on  Agency,  sec.  68. 
^^  tji        Now,  the  power  conferred  by  the  terms  of  the  instrument  in  this  case 
^pt-  {         was,  to  confess  judgment  only  ' '  in  favor  of  the  lesal  holder  "  of  the 
'^^.^  note.     The  plaintiff,  below  was  not  the  ' '  legal ' '  holder  of  the  note,  for 
*^  (i/^       the  note  had  not  bppu  iniinr^ip^^  ^^  ^"•^      He  could  become  the  ' '  legal 
§^^^      hgJTJer  ' '  of  the  note  only  ' '  by  indorsement  thereon,  "  as  authorized  by 
^  the  statute.     S.  &  C.  Stat.  «62  ;  ^very  v.  Latimer,  14  Ohio,  542. 

The  waiving  of  process  end  confession  of  judgment  in  favor  of  the 
plaintiff  below,  was  not,  then,  within  the  authorit}'  conferred  by  the 
power  of  attorney.  Under  the  rule  of  interpretation  applicable  to  such 
instruments,  we  must  conclude  that  the  jurisdiction  of  the  defendants 
below,  obtained  through  the  warrant  of  attorney  only,  and  the  confes- 
sion of  judgment  by  means  thereof,  exceeded  the  authority  conferred 
by  the  defendants  in  their  power  of  attorney,  and  that  the  court,  there- 
fore, erred  in  overruling  their  motion  to  set  aside  the  judgment,  irregu- 
larly obtained  against  them. 

The  negotiability  of  a  warrant  of  attorne3^  with  the  note  to  which  it 
is  attached,  was  questioned  in  Marsden  v.  Soper,  1 1  Ohio  St.  503  ;  and 
denied  in  Osborn  v.  Hawley,  19  Ohio,  130.     But  it  is  not  necessary  to 


W  ALKEli    V.  STEEL.  451 

pass  upon  the  question  in  this  case,  for  the  judgment  must  be  reversed 
on  the  ground  already  stated. 

Brinkerhoff,   C.  J.,   and  Scott,    Welch,  and  White,  JJ.,   con- 
curred.' 


WALKER  V.  STEEL. 


Supreme  Court  of  Colorado,  October  Term,  1886.  /tX^/T 

[9  Colo.  38S.]  C*^^^'' 

Appeal  from  County  Court  of  Gunnison  County.  The  action  was 
brought  in  his  own  name  by  a  member  of  a  dissolved  partnership,  to 
recover  on  a  partnership  account  acquired  by  him  on  the  dissolution 
of  the  firm. 

IV.  H.  Fishback,  for  appellant. 

Thomas  and  Thomas,  for  appellee. 

Helm,  J.— There  was  in  this  case  no  defect  of  parties  plaintiff.  The 
partnership  had,  in  fact,  been  dissolved  several  months  when  the  suit 
was  brought  ;  and  plaintiff,  through  the  settlement  between  himself 
and  copartner,  and  his  purchase  of  the  partnership  property,  had  be- 
come the  exclusive  owner  of  the  account  sued  on.  He  was  therefore 
the  only  party  really  interested  in  collecting  the  balance  due.  Hence, 
under  section  3  of  the  Code  of  Civil  Procedure,  the  action  was  properly 
brought  in  his  name  alone.     Bassett  v.  himati,  7  Colo.  270. 

The  common  law  principle  that  an  action  for  a  partnership  debt, 
whether  instituted    before  or  after  dissolution  of   the  firm,   must   be 

ICf.  Clements  V.  Hull  (1S7S),  35  O.  S.  141.  Here  the  power  of  attorney  authorized  any  attor- 
ney at  law  "  to  confess  judgment  in  favor  of  the  holders  of  said  note."  It  was  held  that  this 
authorized  a  judgment  in  favor  of  an  equitable  owner  and  holder  to  whom  the  note  had  been 
transferred  by  delivery  but  without  indorsement.  "The  code  of  civil  procedure,"  said  McIl- 
VAiNE,  J.,  "  provides  that  every  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest,  and  the  case  before  us  being  within  this  rule,  we  think,  it  must  have  been  in  the 
contemplation  of  the  donor  of  the  power,  as  it  is  clearly  within  the  words  of  the  grant,  that 
the  attorney  should  confess  judgment  in  favor  of  such  equitable  owner  and  holder. 

"The  scope  of  the  power  is  not  limited,  in  this  cas?,  as  it  was  in  the  case,  Cushman  v. 
Welsh,  19  Ohio  St.  536,  in  favor  of  the  legal  holder  only.  The  authority  here  given  is  '  to  con- 
fess judirment  in  favor  of  the  holder  of  said  note,'  and  we  think  these  words  were  intended, 
and  should  be  construed,  to  embrace  any  holder  who  might  lawfully  prosecute  an  action  on 
said  note,  in  his  own  name  and  for  his  own  use.'  " 

The  negative  side  of  the  doctrine  reappears  in  Spence  v.  Emerine  (1889),  46  O.  S.  433. 
Here  a  warrant  of  attorney  attached  to  a  sealed  note  payable  to  the  payee  or  bearer,  author- 
ized '  any  attorney  at  law,  at  any  time  after  the  above  sum  becomes  due,  with  or  without 
process,  to  appear  for  us  in  any  court  of  record  in  the  state  of  Ohio,  and  confess  judgment 
against  us,  for  the  amount  then  due  thereon,  with  interest  and  cost,  and  to  release  all  errors 
and  the  right  of  appeal.'     It  was  held — 

(a)  Such  warrant  of  attorney  conferred  no  authority  to  confess  judgment  against  the 
maker  of  the  note,  in  favor  of  the  holder  to  whom  the  payee  had  transferred  the  note  by  de- 
livery. 

(b)  In  an  action  on  the  note,  it  was  error  to  render  judgment  against  the  maker  thereof 
in  favor  of  such  holder,  by  virtue  of  such  warrant  of  attorney,  without  summons  or  other 
notice  to  the  maker  of  the  b  inging  of  the  action. — Ed. 


452  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

prosecuted  in  the  name  of  all  the  partners,  does  not,  under  the  present 
practice,  and  the  facts  disclosed,  apply  to  this  case.' 

Affirmed  r 


LANE  ''.  DUCHAC  AND  OTHERS. 
Supreme  Court  of  Wisconsin,  March,   12,  1889. 
[73    Wis.  646.] 

This  action  is  to  foreclose  a  mortgage  executed  bj'  the  defendants 
Joseph  Duchac  and  wife  to  Barbara  M.  Rhyner,  on  certain  lands  in 
Langlade  count}-,  to  secure  the  payment  of  an  unnegotiable  promissory 
note  for  $300.  ^^d  interest,  given  by  said  Joseph  Duchac  to  said  Bar- 
bara. The  note  and  mortgage  were  given  for  a  loan  of  money,  and  bear 
date  May  29,  1883.  The  loan  was  made  to  Duchac  by  one  Schintz,  a 
land  and  loan  agent,  through  the  firm  of  Deleglise&  Hutchinson. 

Barbara  M.  Rhyner  was  the  maiden  name  of  the  wife  of  one  Zentner, 
a  client  of  Schintz.  The  latter  had  loaned  money  for  Zentner  at  differ- 
ent times,  and  for  some  of  those  loans  had  taken  securities  in  the 
maiden  name  of  Mrs.  Zentner,  with  her  consent  and  by  the  direction 
of  her  husband.  Schintz  was  orally  authorized  by  both  of  them  to  exe- 
cute receipts,  etc. ,  in  her  maiden  name.  Schintz  was  also  accustomed 
to  make  other  loans  in  the  name  of  Barbara  M.  Rhyner,  with  her  con- 
sent. 

The  money  loaned  to  Duchac  did  not  belong  to  Zentner  or  his  wife, 
and  was  not  loaned  as  the  monej^  of  any  particular  client  of  Schintz. 
The  latter  had  in  his  hands  when  this  loan  was  made  more  than  $300  of 
the  money  of  the  plaintiff.  Lane,  who  was  also  one  of  his  clients,  to  be 
loaned  for  him,  and  from  whom  Schintz  had  a  general  authority  to 
invest  the  money  in  his  discretion.  On  June  5,  1883,  which  was  almost 
immediately  after  he  received  the  note  and  mortgage  from  Deleglise  & 
Hutchinson,  Schintz  charged  the  amount  of  such  note  to  the  plaintiff; 
and  at  the  same  time  assigned,  or  attempted  to  assign,  the  mortgage  to 
the  plaintiff  by  a  written  assignment  executed  by  him  in  the  name  of 
said  Barbara.  He  attested  such  assignment  and  attached  thereto  his 
certificate,  as  a  notary  public,  of  the  acknowledgment  thereof  by  Bar- , 
bara.  He  retained  the  papers  in  his  hands  until  after  the  action  was 
commenced,  and  until  that  time  plaintiff  was  not  informed  of  the  trans- 
action. 

1  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

2  "  We  are  not  aware  of  any  rule  of  law  which  prevents  one  partner  from  asssigning  to  his 
copartner  his  interest  in  the  particular  debt  due  such  partners;  and  under  our  code  of  pro- 
cedure, when  such  claim  is  so  assigned,  the  individual  partner  may,  and  in  fact  must,  sue 
upon  it  in  his  own  name.  See  section  2605,  R.  S." — Per  Txw.ovi,  y,  m  Stuckey  v.  Fritsche 
(1890),  77  Wis.  329,  333.— £(/. 


LANE  V.   DUCHAC  AND  OTHERS.  453 

On  August  15,  18S3,  Duchac  refunded  the  $300  to  Deleglise  &  Hutch- 
inson, who  agreed  to  obtain  the  note  and  mortgage  then  in  the  hands 
of  Schintz,  and  a  release  of  the  mortgage,  but  failed  to  do  so.  Duchac 
then  mortgaged  the  same  land  to  one  Barnes,  who  knew  of  the  mort- 
gage in  suit.  Barnes  afterwards  foreclosed  his  mortgage,  purchased  in 
the  land  at  the  foreclosure  sale,  and  conveyed  the  same  by  warranty 
deed  to  the  defendant  McCully.  The  latter  had  no  actual  notice,  when 
he  purchased  the  land,  of  the  existence  of  the  mortgage  here  in  suit.  .  . 

The  circuit  court  held  that  there  was  no  valid  registry  of  the  mort- 
gage, and  because  the  defendant  INIcCully  had  no  actual  notice,  of  the 
mortgage  when  he  purchased  and  paid  for  the  land,  that  his  rights  were 
paramount  to  those  of  the  plaintiff  under  his  mortgage.  The  court 
thereupon  gave  judgment  dismissing  the  complaint  upon  the  merits. 
The  plaintiff  appeals  from  the  judgment. 

Kennedy  d-^  Schintz  and  Thomas  Lynch,  for  appellant. 

G.  G.  Sedgwick  and  Nash  &  Nash,  for  respondent. 

,Lyon,  J. — II.  The  question  of  the  validity  of  the  registry  of  the 
mortgage  being  thus  determined  in  favor  of  the  plaintiff,'  the  defend- 
ants who  have  interposed  answers  maintain  that  the  judgment  is 
correct  on  other  grounds,  and  they  seek  to  uphold  it  on  those  grounds, 
under  the  rule  of  Maxwell  v.  Hartmann,  50  Wis.  660,  and  other  cases, 
that  the  exceptions  of  the  respondent  are  available  on  appeal  to  save 
the  judgment.  Such  exceptions  raise,  in  this  case,  and  we  think  are 
all  presented  in,  three  questions.  These  are  :  (i)  Is  the  mortgage  void 
because  the  name  of  Barbara  INI.  Rhj-ner  (which  it  is  claimed  is  a 
fictitious  name)  is  inserted  therein  as  mortgagee  ?  (2)  Does  the 
evidence  show  any  effectual  assignment  of  the  mortgage  to  the 
plaintiff?  and  (3)  Did  the  payment  of  the  amount  of  the  mortgage 
debt  by  the  mortgagor  Duchac  to  Deleglise  &  Hutchinson  satisfy  such 
debt  ?     These  questions  will  now  be  considered  in  their  order. 

I.  An  examination  of  the  testimony  satisfies  us  that  the  $300  loaned 
by  Schintz  to  the  defendant  Duchac,  although  Schintz  may  have 
received  the  money  from  his  clients  to  be  loaned,  was,  in  contempla- 
tion of  law,  the  mone}-  of  Schintz,  and  that  as  between  him  and 
Duchac  he  was  the  owner  of  the  note  and  mortgage  given  therefor. 
He  was  responsible  for  the  money  so  received  by  him,  and  it  does  not 
appear  that  he  used  the  funds  of  any  particular  client  or  any  person 
other  than  himself  in  making  the  loan.  Had  the  securities  been  ex- 
ecuted to  him  in  his  own  name,  we  do  not  doubt  he  could  have  main- 
tained an  action  upon  them. 

It  is  not  true  that  a  fictitious  pa3-ee  and  mortgagee  is  named  in  the 
note  and  mortgage.  Barbara  M.  Rhyner  is  not  a  fictitious  person,  but 
a  person  in  esse.  True,  since  her  marriage  she  is  entitled  to  the 
name  of  her  husband,  Zentner,  but  we  are  aware  of  no  law  that  will 

1  Part  of  the  statement  and  of  the  opinion  on  this  point  is  omitted. 


454  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

invalidate  obligations  and  conveyances  executed  by  and  to  her  in  her 
baptismal  name,  if  she  chooses  to  give  or  take  them  in  that  form. 
Hence,  were  she  the  owner  of  the  note  and  mortgage  in  suit,  it  would 
be  no  defence  to  her  action  upon  them  that  they  were  executed  to  her 
by  her  baptismal  name.  Neither  is  it  a  defence  in  an  action  upon  them 
by  any  other  owner  that  Schintz,  with  her  consent,  took  them  in  her 
baptismal  name  for  a  loan  made  by  himself.  It  is  not  unusual  for  a 
person  to  take  securities  in  the  name  of  another  who  has  no  interest  in 
them,  but  that  does  not  invalidate  the  securities  or  prevent  the  person 
beneficially  interested  from  enforcing  payment  of  them  by  action. 

2.  Schintz,  being  the  owner  of  the  note  and  mortgage,  was  com- 
petent to  transfer  the  same  to  the  plaintiff.  In  view  of  the  course  of 
business  between  them,  as  disclosed  in  the  testimony,  we  think  when 
he  charged  the  amount  of  the  mortgage  debt  to  the  plaintiff  such 
transfer  was  made.  It  is  not  important  that  the  papers  remained  in 
the  hands  of  Schintz,  or  that  he  did  not  report  the  transaction  to  the 
plaintiff  until  long  after.  The  relations  between  them  were  such  that 
Schintz  could  lawfully  make  the  transfer  without  consulting  the 
plaintiff.  If  ratification  by  the  plaintiff  is  essential  to  the  validity  of 
such  transfer,  the  bringing  of  this  action  founded  upon  the  transfer,  or 
the  failure  to  repudiate  it,  is  a  suflScient  ratification  by  the  plaintiff  of 
the  acts  of  Schintz.  Moreover,  Schintz  had  authority  from  the  mort- 
gagee to  sign  her  baptismal  name  to  the  assignment  of  the  mortgage 
to  the  plaintiflF.  Of  course  he  was  not  competent  to  attest  the  same 
instrument,  and  certify  her  acknowledgment  thereof  before  himself  as 
a  notary.  But  neither  attestation  nor  acknowledgment,  nor  even  a 
written  assignment,  are  essential  to  the  validity  of  the  transfer  of  the 
note  and  mortgage  to  the  plaintiff.  A  valid  sale  and  transfer  of  the 
note  could  be  made  by  parol  so  as  to  vest  the  same  and  the  mortgage 
debt  of  which  it  is  the  evidence  in  the  purchaser,  and  such  sale  would 
carry  with  it  the  mortgage,  as  the  incident  of  the  debt,  without  any 
written  assignment  thereof.  The  adjudications  in  this  state  and  else- 
where to  this  effect  are  very  numerous.  Some  of  the  cases  are  cited  in 
the  brief  of  counsel  for  plaintiff. 

It  is  immaterial  that  the  note  is  not  negotiable.  A  sale  of  it  trans- 
fers to  the  purchaser  the  mortgage  given  to  secure  itspa3^ment  as  effect- 
ually as  though  the  note  were  negotiable.  It  must  be  held  that  the 
plaintiff  was  the  owner  of  the  mortgage  when  this  action  was  com- 
menced. 

3.  When  the  mortgagor  Duchac  paid  Deleglise  &  Hutchinson  the 
$300  for  the  purpose  of  discharging  the  mortgage  in  suit,  he  knew  that 
the  note  and  mortgage  were  not  in  the  hands  of  that  firm,  but  had  been 
sent  to  Schintz.  Deleglise  &  Hutchinson  did  not  attempt  to  release  the 
mortgage,  but  only  undertook  to  procure  a  release  from  or  through 
Schintz.  Duchac  took  the  risk  of  getting  the  release  in  that  manner. 
Had  the  securities  been  in  the  hands  of  Deleglise  &  Plutchinson  and 


STKEPLE  :'.   DOWNING.  455 

they  had  surrendered  thein  to  Duchac,  or  discharged  the  mortgage,  we 
should  have  the  question  of  tlieir  authority  to  do  so  to  determine.  But 
Deleglise  &  Hutchinson  assumed  to  do  nothing  of  the  kind,  and  the 
question  of  their  authority  to  discharge  the  debt  is  not  here.  We  also 
think  the  testimony  insufficient  to  prove  that  the  firm  had  general 
authority  to  collect  money  for  Schint/.  before  the  same  became  due,  or 
that  the  course  of  business  between  them  was  such,  to  the  knowledge 
of  Duchac,  that  he  had  the  right  to  assume  that  such  authority  had 
been  given  by  Schintz. 

Our  conclusion  is  that  the  defendant's  exceptions  are  insufficient  to 
sustain  the  judgment.  The  judgment  of  the  circuit  court  must  there- 
fore be  reversed,  and  the  cause  will  be  remanded  with  directions  to  that 
court  to  give  judgment  to  the  plaintiff  of  foreclosure  and  sale  as 
•demanded  in  the  complaint. 

By  the  Court. — Ordered  accordingly. 


STEEPLE  V.  DOWNING. 


Supreme  Court  of  Indiana,  May  Term,  1878.  A.l<^'^^^^i. 


[60  Ind.   478.] 


a^^^- 


From  the  Elkhart  Circuit  Court. 

R.  M.  Johnson,  J.  D.  Osborn,  and  E.  G.  Herr,  for  appellants. 

/  //.  Baker,  J.  A.  S.  Mitchell,  and  /.  A.  Qiiackenbush,  for  appellees. 

WoRDEN,  J. — This  was  an  action  by  the  appellees,  against  the  appel- 
lants, to  recover  possession  of  a  certain  tract  of  land. 

Issue  ;  trial ;  verdict  and  judgment  for  the  defendants.  New  trial 
granted  the  plaintiffs,  under  the  statute,  on  payment  of  costs  ;  the  sec- 
ond trial  resulting  in  a  verdict  and  judgment  for  the  plaintiffs.  The 
defendants  below  appeal.     .     .     . 

The  complaint,  the  sufficiency  of  which  is  called  in  question,  was  as 
follows,  viz.: 

"The   plaintiffs,    Lewis    Downing,    Helms   Downing,    Sample  R.    Downing,    |  A        ^ 
Theodore    Downing,    Susannah    Laffey,    Bernard    Laffey,    her    husband,    Zelia  \j^ 

Chase,  and  Sidney  E.  Chase,  her  husband,  Lucy  Jane  Weeks,  and  Nelson  \  I 
Downing,  complain  of  the  defendants,  George  Steeple  and  Rose  Steeple,  and  say 
they  are  the  owners,  and  lawfully  entitled  to  the  immediate  possession,  of  the 
following  described  real'  estate,  situate  in  Elkhart  County,  in  the  State  of 
Indiana,  to-wit;  All  that  part  of  the  south-east  quarter  of  section  six  (6),  town-  | 
ship  thirty-seven  (37)  north,  of  range  five  (5),  lying  and  being  south  of  the  St. 
Joseph  river;  which  real  estate,  above  described,  the  defendants  have  possession 
of  without  right,  and  unlawfully  detain  from  the  plaintiffs. 


451) 


IN  WHOSB  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


J-' 


y 


\A 


X 


K 
> 


^ 


"Wherefore,  plaintiffs  pray  judgment  for  the  possession  of  said  real  estate, 
and  one  thousand  dollars  for  the  detention  thereof."  > 

The  defendants  answered  in  five  paragraphs.  The  first  was  the  gen- 
eral denial.  To  the  third,  a  demurrer  for  want  of  sufficient  facts  was 
sustained.  We  have  not  considered  whether  the  third  was  sufficient  in 
law,  because  all  defences  could  have  been  given  in  evidence  under  the 
o-eneral  denial,  and  hence  no  harm  could  have  been  done  in  sustaining 
the  demurrer. 

The  fourth  paragraph  of  answer  was  as  follows  : 

"And  for  a  fourth  and  further  answer  to  the  plaintiffs'  complaint  herein,  the 
said  defendants  say,  that  the  said  plaintiffs  are  not  the  real  parties  in  interest; 
that,  prior  to  the  commencement  of  this  suit,  the  said  plaintiffs  sold  and  conveyed 
the  real  estate  described  in  the  complaint  to  one  John  Weston,  and  therefore,  at 
the  time  of  instituting  the  suit,  had  no  interest  in  the  subject-matter  thereof." 

To  this  paragraph  of  answer  the  plaintiffs  replied,  first,  by  denial, 
and  second,  as  follows : 

"And,  for  second  and  further  reply  to  the  fourth  paragraph  of  the  defendants' 
answer,  the  said  plaintiffs  admit  that  they  did,  prior  to  the  commencement  of 
this  suit,  by  deeds  of  conveyance,  bargain,  sell,  and  convey  to  the  said  John 
Weston  the  real  estate  in  the  plaintiffs'  complaint  mentioned;  but  said  plaintiffs 
say,  that  they  are  not,  nor  ought  they  to  be,  precluded  thereby  to  prosecute  their 
aforesaid  action  in  this  behalf,  because,  they  say,  that,  at  and  prior  to  the  date 
of  the  execution  of  said  deeds  of  conveyance  by  them,  the  said  plaintiffs,  to  said 
John  Weston,  alleged  in  said  answer,  the  said  defendants,  George  Steeple  and  Rose 
Steeple,  were  in  the  actual  occupancy  and  enjoyment  of  said  real  estate  mentioned 
in  the  complaint,  under  a  pretended  deed  of  conveyance  thereof  to  them,  or 
one  of  them,  and  holding  and  enjoying  the  same  under  a  pretended  claim  of 
right  and  title,  and  adversely  to  the  plaintiffs  and  to  the  world;  whereby,  as  to 
them,  the  said  defendants,  the  said  deeds  of  conveyance  from  the  said  plaintiffs 
to  the  said  John  Weston  are  champertous  and  void;  and  they,  the  said  plaintiffs, 
have  good  right  and  lawful  authority  to  prosecute  this  suit  for  the  use  and  benefit 
of  their  said  grantee. 
"  Wherefore, "  etc. 

A  demurrer  to  this  paragraph  of  reply,  for  want  of  facts,  was  filed 
by  the  defendants,  and  overruled.     This,  it  is  claimed,  was  error. 

A  conveyance  of  land,  though  by  the  rightful  owner,  wdiile  it  is  in 
the  adverse  possession  of  another  claiming  to  be  the  owner  thereof,  is 
absolutely  void  as  to  the  party  in  possession  and  his  privies.  The 
German  Mut.  his.  Co.  of  Indianapolis  v.  Grim,  32  Ind,  249,  and  cases 
there  cited. 

1  A  portion  of  the  opinion,  considering  an  objection  that  the  complaint  in  terms  desig- 
nated the  defendants  as  the  owners  of  the  land,  is  omi  ted.  The  Court  was  of  opinion  that 
the  word  "  they,"  used  in  the  complaint,  may  be  u:iderstood  to  relate  to  the  plaintiffs  who 
had  been  previously  n  me  1  and  not  to  the  defendants. 


STEEPLE  "'.  DOWNING.  -i')! 

Such  deed,  therefore,  does  not  vest  the  grantee  with  the  title  to  the 
land,  as  against  the  party  in  possession  ;  nor  can  the  grantee  main- 
tain an  action  in  his  own  nanie,  to  recover  the  land,  against  the  party 
thus  in  possession  when  the  deed  was  executed. 

But  such  deed  is  good  as  between  the  parties  thereto,  and  it  author- 
izes the  grantee  to  bring  an  action  in  the  name  of  the  grantor,  against 
the  party  in  possession,  to  recover  the  land  ;  and  the  recovery  will 
inure  to  the  benefit  of  the  grantee. 

We  make  the  following  quotation  from  the  opinion  delivered  by 
Bronson,  J.,  in  the  case  of  Livingston  v.  Prose?is,^  2  Hill,  526,  as  being 
applicable  to  the  case  here  : 

"  It  is  extremeh^  well  settled,  that  a  conversance  of  lands  which  are 
at  the  time  held  adversely  to  the  grantor,  is  inoperative  and  void.  It 
would  seem  to  follow  from  this  doctrine  that  the  title  remains  in  the 
grantor,  and  that  he  may  assert  it  in  the  same  manner  as  though  the 
deed  had  not  been  made.  But  it  is  equally  well  settled,  that  as  between 
the  grantor  and  the  grantee,  and  persons  standing  in  legal  privity  with 
them,  the  deed  is  operative  and  passes  the  title.  Jackson  v.  Dernont,  9 
Johns.  55  ;  Livingst07i  v.  Peru  Iron  Co.,  9  Wend.  516,  per  Savage,  C. 
J.;  Van  Hoesen  V.  Benham,  15  AVend.  164.  From  these  two  proposi- 
tions, to-wit,  that  the  owner  has  parted  with  his  title,  and  that  the 
grantee  can  not  assert  it  on  account  of  the  adverse  holding  which 
avoids  the  deed,  it  has  been  supposed  to  result  as  a  necessary  conse- 
quence that  the  title  was  extinguished  or  lost.  But  it  has  been  denied 
that  any  such  consequence  follows.  Jackson  v.  Brinckerhoff,  3  Johns. 
Cas.  loi  ;  Jackson's.  Vrcdenburgh,  i  Johns.  159;  Williams  v.  Jackson,  5 
Johns.  489  ;  Jackson  v.  Leggett,  7  Wend.  377.  Indeed  it  may  be  laid 
down  as  a  maxim  in  the  law,  that  a  title  which  once  existed  must  con- 
tinue to  reside  somewhere  ;  it  can  not  be  annihilated. 

' '  The  whole  apparent  difficulty  arises  from  an  inaccurate  statement 
of  the  consequence  which  results  from  the  adverse  holding  at  the  time 
the  deed  is  executed.  It  is  often  said  in  the  books,  without  any  quali- 
fication, that  the  deed  is  void.  But  that  is  only  true  in  relation  to  the 
person  holding  adversel3%  and  those  who  afterwards  come  in  under  him. 
As  to  all  the  rest  of  the  world  the  deed  is  valid,  and  passes  the  title 
from  the  grantor  to  the  grantee.  This  I  think  is  sufficientlj^  established 
by  the  cases  already  mentioned  and  the  authorities  on  which  they  rest. 
The  deed  is  void  as  against  the  party  who  might  otherwise  be  injured  ; 
but  it  is  good  as  to  all  others.  If  the  person  who  held  adversely  vol- 
untarily abandon  the  possession,  there  can  be  no  doubt  that  the  grantee 
maj'  enter  and  enjoy  the  land.  Or,  if  after  such  abandonment  a 
stranger  enter,  the  grantee  may  bring  ejectment  and  oust  him.  The 
stranger  was  in  no  peril  of  being  injured  by  the  conveyance.      His  entry 

1  Decided  by  the  Supreme  Court  of  New  York  in  1842. 


458  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

was  tortious,  and  he  shall  not  cover  himself  with  ashield  which  belongs 
to  another,  between  whom  and  himself  there  is  no  legal  privity. 

"  But  as  against  a  person  holding  adversel}',  the  deed  is  utterly  void — 
a  mere  nullity.  There  was  an  attempt  to  convey,  but  the  parties  failed 
to  accomplish  the  object.  The  title  still  remains  in  the  original  proprie- 
tor, and  he  may,  indeed  must,  sue  to  recover  the  land.  It  is  true  that 
the  recovery  will  inure  to  the  benefit  of  the  grantee  in  the  deed  ;  but 
that  is  a  matter  between  him  and  the  grantor,  and  with  which  the  per- 
son holding  adversely  has  nothing  to  do.  It  is  enough  for  him  that  the 
deed  does  him  no  injur5\ 

' '  When  it  has  been  apprehended  that  a  deed  might  be  attacked  on 
the  ground  of  an  adverse  holding  at  the  time  it  was  made,  it  has  been 
usual  to  insert  counts  in  the  declaration  on  the  title  of  the  grantor  and 
the  grantee,  so  that  if  the  suit  failed  as  to  the  one,  it  might  succeed  as 
to  the  other.  Jackso?i  v.  Leggett,  7  Wend.  377.  But  the  title  is  not  in 
both  of  them,  and  it  is  but  a  poor  compliment  to  the  law  as  a  science 
that  it  can  not  decide  which  ought  to  sue.  It  has,  I  think,  settled  the 
question.  When  the  action  is  brought  against  the  person  holding 
adversel}-,  or  any  one  who  has  succeeded  to  his  right,  the  grantor  must 
sue.  But  as  against  a  stranger — one  who  does  not  stand  in  legal  privity 
with  him  who  held  adverseh'  when  the  deed  was  made — the  grantee 
must  sue.  In  cases  where  the  grantor  may  sue,  he  must  of  necessity 
be  allowed  to  show  the  deed  void  when  the  defendant  attempts  to  set  it 
up  to  defeat  a  recover}-.  Otherwise,  the  defendant  would  first  defeat 
the  grantor  by  showing  he  had  conveyed,  and  then  defeat  the  grantee 
by  showing  the  deed  void  ;  and  thus  we  might  come,  in  effect,  to  the 
result  of  extinguishing  a  good  title.  " 

The  above  doctrine  was  applied  in  the  case  of  Hamilto?i  v.  Wright 
[1868],  37  N.  Y.  502,  where  it  was  held,  that  the  grantee  in  such  deed 
might  bring  an  action  in  the  name  of  his  grantor,  to  recover  possession 
of  the  land  from  the  person  in  the  adverse  possession  when  the  deed 
"was  made.^ 

In  the  case  oi  Fariium  v.  Peterson,  iii  Mass.  148,  151,  it  was  said, 
that,  "  When  it  was  said  that  the  deed  of  one  who  is  disseised  is  void, 
it  is  intended  onl}^  that  it  is  inoperative  to  convey  legal  title  and  seisin, 
or  a  right  of  entry,  upon  which  the  grantee  may  maintain  an  action  in 
his  own  name  against  one  who  has  actual  seisin.  It  is  not  void  as  a 
contract  between  the  parties  to  it.  The  grantee  may  avail  himself  of  it 
against  the  grantor  by  way  of  estoppel;  or  b}^  suit  upon  the  covenants; 
or  may  recover  the  land  b}' an  action  in  the  name  of  the  grantor." 
.^gain,  \n  McMahnn  v.  Bozvc,  114  Mass.  140,  145,  it  was  said:  "The 
authorities  in  this  state  cited  by  the  tenant,  show  the  rule  to  be 
established  that  a  deed  of  a  disseisee  conveys  no  title  which  can  be 

1  This  decision  was  under  an  amendment  to  the  New  York  code,  see  p.  iSS,  ante:r\oic\  see 
also  the  amendments  on  this  point  which  appear  in  the  codes  of  North  Dakota,  North  Caro- 
lina, and  South  Carolina,  indicated  on  pp.  191,  192,  ante. — Ed. 


STEHPLIv  Z'.  DOWNIXC.  439 

enforced  in  the  name  of  the  grantee  against  the  disseisor  or  his  privies, 
but  they  go  no  further.  It  is  now  held,  that  such  deed  is  good  against 
the  grantor,  and  that  it  entitles  the  grantee  to  an  action  to  recover  the 
land,  in  the  name  of  the  grantor,  but  to  his  own  use,  even  against  the 
disseisor."     See,  also,  Tyler  on  Ejectment,  p.  939,  ct  scq. 

We  are  satisfied,  l)oth  upon  reason  and  authority,  that  where  one 
conveys  laud  to  another,  which  at  the  time  is  in  the  adverse  possession 
of  a  third  person,  whereby  the  title  can  not  pass  as  against  the  part\- 
thus  in  possession,  the  grantor  impliedly  authorizes  the  grantee  to  use 
his,  the  grantor's,  name,  in  an  action  to  recover  the  land  from  the  party 
thus  in  possession  thereof. 

It  must  be  assumed  that  the  grantor  intends,  by  such  deed,  not  only 
to  vest  the  title  in  the  grantee  as  between  the  latter  and  himself,  but  as 
against  the  part}'  thus  in  possession,  and  to  give  the  grantee  the  bene- 
ficial enjoj'inent  of  the  property.  The  grantee,  however,  can  not  have 
the  enjoyment  of  the  property,  vinless  he  may  use  the  name  of  his 
grantor  as  plaintiff,  in  an  action  to  recover  it. 

If  he  can  not  thus  use  the  name  of  his  grantor,  his  deed  conveys  no 
right  that  he  can  enforce,  and  it  is  a  mockery  to  say  that  the  title  passes 
to  him  as  between  his  grantor  and  himself.  As  the  use  of  the  grantor's 
name  in  such  action  as  plaintiff  is  necessary  in  order  to  give  the  grantee 
possession,  and  therefore  the  enjoyment  of  the  property,  in  accordance 
with  what  must  have  been  -the  intention  of  the  parties  to  the  deed,  it 
seems  clear  that  the  grantor,  by  making  such  deed,  impliedly  author- 
izes the  use  of  his  name  as  plaintiff,  in  an  action  to  recover  the  property. 

The  case  is  not  without  its  analogies  in  the  law.  Thus,  before  the 
code,  where  a  chose  in  action  was  assigned,  the  legal  title  not  vesting 
in  the  assignee,  the  latter  might  have  sued  upon  it  in  the  name  of  the 
assignor,  and  the  courts  would  have  protected  the  assignee  in  his  equit- 
able rights,  against  the  wrongful  acts  or  interference  of  the  assignor. 
I  Chitty's  Plead.,  i6th  Am.  ed.,  p.  17,  n.  k.;  Chitty's  Bills,  1.2th  Am. 
ed.,  p.  10,  n.  2. 


n^f^ 


But  it  is  claimed  by  the  appellants,  that  the  code  precludes  the  right 
of  bringing  such  action  in  the  name  of  the  grantor,  by  providing  that.   I    ^      a 

•  Tiame  of  the  real  party  in  in-       W'"*^^' 


"  Kverv  action  must-  bo  pronprntfd  i"  l->ip  natjip^ r»f  the_real  partx  ■ 
terest,  "  etc.  2  R.  S.  1876,  p.  33,  sec.  3.  If  such  must  be  the  construc- 
tioiT  of  the  code,  then  it  results,  that,  where  the  owner  of  land  has 
conveyed  it  while  it  was  in  the  adverse  possession  of  another,  no  one 
could  ever  maintain  an  action  against  theparty  in  possession,  to  recover 
it.  The  grantee  of  such  deed  could  not,  as  has  been  seen,  because  his 
deed,  as  against  the  party  in  possession,  is  void. 

If  nti  nnHrin  (^a-n  r|pt  Y'r\  mil  Tit''"  "ed  Jn  sucli  cas^Jn^  the  jiame_of  the 
granforTit  can  not  be  maintained  at  all;  and  the  party  in  possession, 
and  those  claiming  under  him,  can  retain  the  property  for  all  time, 
however  groundTesshis  claim  jiiayi  have  Joeep.  We  are  not  inclined  jto 
give  the  code  a  c'onstruction  that  will  lead  to  such  results.     We  think 


/I 


460  TN  WHOSE  NAMB  THE  ACTION  SHOULD  BE;  BROUGHT. 

the  grantor  of  such  deed  is  the  real  party  in  interest  in  su^h  action, 
as  a.^-inst  the  party  in  po'^^pssion  of  the  land.  The_title  to  the  land,  as 
'against  the  party  in  possession,  still  remains  in  the  grantor  of  such 
deed.  So  far  as  the  defendant  in  such  action  is  concerned,  the  case 
stands  as  if  no  conveyance  had. been  made  by  the  owner  at  all,  for  the 
conve3'ance,  as  to  the"  defendant,  is  a  nullity. 

How  can  a  party  in  possession  be  heard  to  say  that  such  conveyance, 
as  to  him,  is  void,  and  at  the  same  time  say  that  it  is  valid  for  the  pur- 
pose of  making  the  grantee  the  real  partj-  in  interest  ?  He  must  be 
consistent;  and  when  he  claims  that  the  deed  is  void  as  to  him,  he  must 
abide  by  the  results  that  follow.  He  can  not  claim  that  it  is  void  as  to 
him,  and  yet  derive  a  benefit  from  it  as  if  it  were  valid.  He  can  not  say 
that  the  deed  is  void  as  to  him,  and  does  not  transfer  the  title,  and  yet 
say  that  the  grantor's  title  is  transferred  thereby,  so  as  to  make  the 
grantee  the  real  part}'  in  interest.  He  can  not  be  permitted  thus  to 
' '  blow  hot  and  cold. ' ' 

The  supposed  difficulty  in  maintaining  an  action  in  such  case,  in  the 
name  of  the  grantor,  has  been  obviated  in  New  York,  by  an  amend- 
ment to  the  code,  providing  thai  "an  action  may  be  maintained  by  a 
grantee  of  land,  in  the  name  of  a  grantor,  when  the  grant  or  grants 
are  void  by  reason  of  the  actual  possession  of  a  person  claiming  under 
a  title  adverse  to  that  of  the  grantor  at  the  time  of  the  deliver}^  of  the 
gra.nt.'''' J  Hamilton  V.   Wright,  supra. 

It  haB  never  been  decided  in  New  York,  so  far  as  we  are  advised, 
that,  under  the  code,  without  the  amendment  above  noticed,  an  action 
by  such  grantee  could  not  be  maintained  in  the  name  of  his  grantor, 
to  recover  the  land.  The  amendment  was  adopted,  as  it  would  seem, 
to  remove  a  doubt  which  had  existed  on  the  subject.  Woodruff,  J., 
in  delivering  the  opinion  of  the  court  in  the  above  cited  case  (p.  507), 
said:  "When,  therefore,  the  code  had,  in  section  iii,  provided  that 
every  action  should  be  brought  in  the  name  of  the  real  party  in  interest, 
a  doubt  arose  whether  an  action  to  recover  lands  thus  conveyed  could 
be  brought  b}'-  anyone.  If  brought  in  the  name  of  the  grantee,  he 
could,  as  against  the  party  in  possession,  show  no  title  ;  for,  as 
against  such  part}',  his  deed  was  void.  If  brought  in  the  name 
of  the  grantor,  it  might  be  shown  that  he  was  not  the  real  party  in 
interest,  because,  if  he  recover,  his  recovery  would  inure,  not  for  his 
own  benefit,  but  for  the  benefit  of  the  grantee. 

"The  code  was,  therefore,  amended  so  as  to  exclude  such  a  conclu- 
sion, by  adding  to  the  section  the  provision,"  etc.  The  provision 
alluded  to  is  the  one  above  set  out. 

We  are  satisfied,  that,  under  our  code,  where  land  has  been  conveyed 
which  at  the  time  was  in  the  adverse  possession  of  another,  an  action 
may  be  maintained  to  recover  it  from  the  party  thus  in  possession,  in 
the  name  of  the  grantor  in  such  conveyance  as  plaintift. 


;,  1  1.1.1'UIC  f.   DOWNING.  4(il 

We  are  of  opinion,  for  the  foregoing  reasons,  that  the  second  para- 
graph of  the  reply  to  the  fourth  paragraph  of  answer  was  good,  and 
that  the  court  committed  no  error  in  overruling  the  demurrer  thereto. ' 

i  Part  of  the  opinion  on  other  points  is  omitted. 

See  also,  Burke  v.  Andis  (KH.S4).  98  Ind.  59.  The  plainlilT,  Neal,  having  failed  at  a  former 
trial,  because  the  defendant,  Burke,  was  in  adverse  possession  at  the  date  of  plaintiff's  deed, 
took  a  new  trial  as  of  right,  and  asked  leave  to  amend  his  complaint  by  substituting  the 
name  of  his  grantor.s,  as  plaintiffs.  Said  the  court,  per  Bicknell,  C.  C.  (p.  62):  "  He  had  a 
right  to  sue  in  their  names  for  his  own  benefit.  Steeple  v.  Downing,  60  Ind.  47S.  The  amend- 
ment produced  no  delay,  and  no  change  in  the  defendant's  pleading,  and  put  the  defendant 
under  no  disadvantage  as  to  his  title."  The  amendment  was  therefore  allowed.  Compare 
Indiana  Statutes,  g  394,  R.  S.  iSSi. 

m  Roszcll  V.  Rossell  (1885),  105  Ind.  77,  one  R.,  claiming  to  own  land  which  had  been 
deeded  to  his  infant  son,  brought  an  action  against  the  latter  to  quiet  title,  which  was  done. 
R.  then  sold  and  conveyed  the  land  to  G.  and  the  latter  to  1".  Afterwards  when  R.'s  son  be- 
came of  age,  he  appealed  from  the  judgment  in  favor  of  his  father.  P.  filed  an  application 
to  be  allowed  to  defend,  either  in  his  own  name  or  in  the  name  of  R.,  showing  interest  and 
alleging  that  R.  was  insolvent  and  that  he  and  his  son  had  colluded  to  procure  a  reversal  of 
the  judgment.  Held,  that  P.  could  defend  in  R.'s  name,  and  that  a  confession  of  errors  filed 
by  R.  in  the  appeal  was  to  be  disregarded.  Said  the  court,  per  Zollars,  J.  (p.  79):  "  The 
grantor  in  such  cases,  by  his  conveyance,  autliorizes  the  grantee  to  protect  his  right  in  the 
property  conveyed,  by  a  suit  or  defence  in  the  name  of  the  grantor,  and  in  such  cases  the 
grantor  can  neither  dismiss  the  suit  nor  prevent  the  defence." 

Compare  Smith  v.  Long  (18S2).  12  Abb.  N.  C.  113  [A  tract  of  land,  while  held  adversely  by 
Long,  was  conveyed  by  Smith  to  Talmage,  by  Talmage  to  Thomas,  by  Thomas  to  Adams, 
who  brings  ejectment,  suing  in  the  name  of  the  first  grantor.  Smith],  Said  the  Court  of 
Appeals,  per  Tracy,  J.:  "To  hold  that  a  remote  grantor  can  bring  such  an  action  in  the  name 
of  the  original  grantor  would  be  to  encourage  dealings  in  such  claims  to  real  estate  and  nul- 
lify the  statute  which  was  intended  to  prevent  the  party  out  of  possession  from  transferring 
his  right  to  litigate  the  validity  of  the  title.  Sands  v.  Hughes,  53  N.  Y.  2S7,  296  [And  see 
I  New  York  Rev.  StatS.,  §  147;  2  id.,  \  6].  We  think  a  grantee,  bringing  such  an  action,  must 
bring  it  in  the  name  of  his  immediate  grantor,  and  must  stand  or  fall  r  n  the  validity  of  his 
title.  We  are  referred  to  no  case  where  the  action  has  been  maintained  by  or  for  the  benefit 
of  any  one  but  the  first  grantee,  and  we  think  that  a  construction  which  so  limits  the  right 
of  action  best  accords  with  the  public  policy  which  has  so  long  prevailed  in  this  state  rela- 
tive to  this  class  of  assumed  titles  to  real  estate  held  by  persons  out  of  possession."— £rf. 


462  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

2.        foc-Vrr»w>'»/    pendente  Hte.^ 

HASTINGvS  r.  McKINLEY  AND  ANOTHER. 

Court  of  Common  Pleas  of  the  City  and  County  of  New  York, 
December,  1851 

[I   E.  D.  Smith,  273]^ 

This  suit  was  tried  twice.  Upon  the  first  trial,  the  defendant  J  had  a 
verdict  and  judgment.  Upon  the  second  trial  the  plaintiff  had  a  verdict 
and  judgment,  from  which  judgment  the  defendants  appealed.  Upon 
this  appeal  the  questions  arose  which  appear  in  the  opinion,  on  the 
further  facts  therein  stated. - 

Elijah    Ward,  for  the  defendants. 

Hira^n  P.  Hastings,  plaintiff  in  person. 

By  the  Court.  Woodruff,  J. — This  action  was  commenced  in  the 
month  of  February,  1849,  in  the  name  of  Manuello  Montejo  de  Castel- 
lanos,  the  wife  of  Pedro  de  Castellanos,  as  sole  plaintiff,  and  was 
founded  upon  an  instrument  in  writing,  dated  September  ist,  1848, 
whereby  the  defendants,  for  value  received,  promised  to  pay  to  the 
order  of  Messrs.  Broint  &  Brugues  the  sum  of  $500  as  soon  as  certain 
two  cases  of  merchandise  (therein  described)  should  be  delivered  or 
tendered  to  the  agents  of  the  defendants  at  Havanna. 

On  the  2nd  of  September,  1848,  the  payees  endorsed  the  instrument 
in  blank,  as  follows  : 

'•  Pay  the  within  to 
M.  Broint, 
M.  Brugues.  " 

and  delivered  the  same  thus  endorsed. 

The  complaint  avers  that  the  agreement  was  procured  with  the  sep- 
arate funds  of  the  wife  ;  that  she  has  a  separate  property  not  belong- 
ing to  her  husband  ;  and  that  the  demand  in  question  belongs  exclu- 
sively to  her  separate  estate. 

The  answer,  so  far  as  it  is  material  to  the  consideration  of  this 
appeal,  consisted  of  a  denial  of  the  plaintiff's  title  to  the  instrument, 
and  a  denial  that  she  had  any  "  separate  property  from  her  husband. " 

On  the  2ist  of  May,  1849,  the  then  plaintift  executed  an  assignment, 
whereby,  in  consideration  of  $500,  she  transferred  the  agreement  to  the 
present  plaintiff,  Hastings,  who  was  her  attorney  in  the  action;  and  her 
husband,  Pedro  de  Castellanos,  subjoined  and  subscribed  his  consent  to 
such  transfer;  and  thereupon  an  order  of  the  court  was  obtained,  entered 

1  Affirmed,  Nastinizs  v.  McKhiley  (1S53),  New  York  Court  of  Appeals,  Selden's  Notes 
(2nd  ed  ),  173. 

2  The  reporter's  statement  of  the  case  has  been  abridged. 


HASTIXGS  t'.   MCKINMCV  AN])  AXOTHKR.  4(J3 

May  31,  1S49,  under  g  loi  of  the  code  then  in  force,  (g  121  of  the  code  of 
1S49')  by  which  the  present  plaintiff,  Hastings,  was  substituted  as  the 
plaintiff  in  the  action. 

On  the  trial,  the  husband  of  the  fonner  plaintiff  was  called  as  a  wit- 
ness, and  was  objected  to  by  the  defendants  as  incompetent.  The  ob- 
jection was  overruled,  and  the  defendants  excepted  to  the  decision. 

The  exception,  with  a  motion  for  a  nonsuit,  present  all  the  grounds 
which  were  urged  by  the  defendants'  counsel  on  the  argument  of  the 
appeal  for  reversing  the  judgment. 

FirsL  It  is  insisted  by  the  defendants  that  a  married  woman  could 
not  sue  without  joining  a  next  friend;  and  that  the  substitution  of  a 
person  competent  to  sue,  though  made  by  order  of  the  court  before  the 
trial,  did  not  cure  this  defect,  which  was  apparent  upon  the  face  of  the 
complaint. 

Section  127  of  the  code  of  1848,  (§  148  of  the  code  of  1849,)  provides 
that  certain  objections  should  be  deemed  waived  by  the  defendant  if  not 
taken  bj^  demurrer  or  answer.  Among  these  are,  ' '  that  the  plaintiff 
has  not  legal  capacity  to  sue,"  and  "that  there  is  a  defect  of  parties, 
plaintiff  or  defendant. ' ' 

It  appears  to  me  that  this  section  is  conclusive  against  the  defend- 
ants upon  this  point.  If  the  plaintiff  had  no  legal  capacity  to  sue,  that 
defect  was  apparent  on  the  face  of  the  complaint ;  it  is  one  of  the 
grounds  of  demurrer  expressly  named  in  §  122,  (§  144  of  amended  code). 
The  defendant  might  have  demurred.  By  §  126,  (§  147  amended  code), 
if  the  defects  were  not  sufficiently  apparent  on  the  face  of  the  com- 
plaint, the  defendant  might  have  set  it  up  in  his  answer  ;  he  has  done 
neither,  and  I  see  not  how  the  express  statutory  conclusion,  compulsorv' 
in  its  terms,  that  "  he  shall  be  deemed  to  have  w-aived  the  same,  "  can 
be  avoided.^ 

1  Providing  that  "no  action  shall  abate  by  the  death,  marriage,  or  other  disability  of  a 
party,  or  by  the  transfer  of  any  interest  therein,  if  the  cause  of  action  survive  or  continue"; 
and  that  "  in  case  of  .  .  .  any  other  transfer  of  interest  [than  by  death,  marriage,  or  other 
disability],  the  action  shall  be  continued  in  the  name  of  the  original  party  or  the  court  may 
allow  the  person  to  whom  the  transfer  is  made  to  be  substituted  in  the  action." 

2  In  Gray  v.  IVells  (1897),  118  Cal.  11,  the  plaintiff,  as  assignee  of  G.  F.  Gray  and  H.  X. 
Gray,  partners  doing  business  under  the  firm  name  of  Gray  Bros.,  sued  to  recover  $364.96, 
alleged  to  be  due  and  unpaid  for  work  done  and  materials  furnished  by  Graj'  Bros,  at  the 
defendant's  request.  The  defendant  claimed  that  plaintiff  could  not  maintain  the  action, 
because  he  was  a  member  of  the  firm  of  Gray  Bros,  and  that  firm  had  never  filed  or  pub- 
lished any  certificate  of  partnership  as  required  by  the  California  Civil  Code  (?§  2466,  246S). 
But,  said  the  Supreme  Court,  per  Belcher,  C,  "it  has  been  held  by  this  Court  that, 
though  persons  doing  businesses  partners  can  not  maintain  any  action  upon  or  on  account 
of  any  contracts  made  or  transa  tions  had  in  their  partnership  name  until  they  have  first 
filed  and  published  the  certificate  required,  still  their  assignee  may  maintain  such  an  action 
(Cheney  V.  Ne~ivberry,  67  Cal.  126;  IVingHov.  Baldwin,  70  Cal.  194).  .-Vud  the  fact  that  the 
assignee  ■was  a  member  of  the  firm  is  immaterial.  It  was  in  effect  so  held  in  the  case  first 
cited,  where  the  name  of  the  firm  was  Wm.  H.  Cheney  &  Co.  and  the  name  of  the  assignee 
was  William  H.  Cheney.     The  point  can  not  therefore  be  sustained." 

So  in  Quan  Wye  v.  Chin  Lin  Hee  (1898),  123  Cal.  1S5,  where  the  name  of  the  assignor. 
"  Quan  On  Wing,"  was  "  a  fictitious  name,  not  showing  the  persons  interested  as  partners." 


4:Gi  IN  WHOSE  >.AMH  THE  ACTH)X  SHOULD  BE  BROUGHT. 

Second.  In  connection  with  the  point  that  the  substitution  of  Hast- 
ings as  plaintiff,  did  not  cure  the  defect,  it  is  urged  by  the  defendant 
that  the  transfer  being  made,  pendente  lite,  to  the  attorney  on  the  record, 
was  void,  on  the  ground  of  maintenance.  On  this  point  it  is  only 
necessary  to  say,  that  according  to  the  views  above  suggested,  there 
was  no  defect  to  be  cured  ;  and  second,  if  a  new  defence  of  this  descrip- 
tion arose,  pendente  lite,  the  defendant  should  have  set  it  up  by  supple- 
mental answer,  under  §  152,  (g  177  of  amended  code  of  1849)-  Tliis  he 
would  have  been  permitted  to  do,  as  one  of  the  conditions  of  allowing 
the  new  plaintiff  to  be  substituted  ;  or  if  such  a  defence  was  clearly  well 
founded,  and  appeared  by  the  plaintiff's  own  showing,  it  might  have 
been  a  sufficient  reason  why  no  substitution  should  be  permitted. 

We  do  not  intend  to  intimate  that  upon  any  facts  appearing  on  the 
face  of  the  paper,  or  that  were  shown  on  the  trial,  there  is  anything  in 
this  supposed  defence  ;  but  we  are  clear  that,  it  not  having  been  set  up 
as  a  defence,  the  defendant  can  not  now  urge  the  objection.' 

The  judgment  must  be  affirtned  with  costs. 


# 


DUNDEE  MORTGAGE  &  TRUST    INVESTMENT    COMPANY  v. 

HUGHES. 

United   States  Circuit  Court,  D.  Oregon,  August  4,   1S98. 

[89  Fed.  Rep.   182.] 

This  was  a  hearing  on  a  plea  setting  up  matter  in  abatement. 

William  T.  MuirandJ.   IV.   Whalley,  for  plaintiff. 

Ellis  G.  Hughes,  in  pro.  per. 

Gilbert,  Circuit  Judge. — The  defendant  in  this  case  filed  a  supple- 
mental answer  in  the  nature  of  a  plea  in  abatement,  alleging :  Jirst, 
that  in  the  year  1889  the  plaintiff,  which  is  a  corporation  organized 
under  the  laws  of  Great  Britain  and  Ireland,  having  its  principal  busi- 
ness in  Dundee,  Scotland,  was  duly  and  regularly  wound  up,  dissolved, 
and  lost  its  corporate  existence  and  powers,   further  than   might  be 

1  The  defendant  had  urged  also  that  the  agreement  upon  which  the  suit  was  brought  was 
not  a  negotiable  note,  and  therefore  was  not  assignable  by  the  endorsement  of  the  payee  in 
blank.  Said  the  Court,  in  the  third  place:  "Whether  the  note  was  negotiable  or  not,  we 
deem  the  endorsement  quite  sufficient  to  pass  the  interest  of  the  payee.  It  is  not  now, 
as  formerly,  necessary  to  inquire  whether  an  assignment  passes  the  legal  title,  so  as  to  en- 
title the  assignee  to  sue  in  his  own  name.  Whether  his  title  be  legal  or  equitable,  if  he  have 
the  whole  interest,  he  may  maintain  the  action.  It  is  no  new  proposition  that  the  mere  en- 
dorsement by  the  payee  of  a  note  mo/ negotiable  with  his  own  }iameoi\\y,  is  an  authority  to  the 
holder  to  fill  up  the  endorsement  by  an  assignment  to  himself.  Indeed,  I  doubt  the  necessity 
of  any  written  assignment  where  there  is  an  actual  transfer  and  delivery  of  the  th  ng  in 
action,  with  intent  to  vest  the  interest  in  the  transferee,  so  that  the  court  can  see  that  the 
whole  equitable  interest  and  property  in  the  money  agreed  to  be  paid  is  in  the  plaintiff. 

"At  all  events,  I  am  of  opinion  that  the  endorsement  in  this  case,  in  connection  wi'.h  the 
proof  of  interest,  was  quite  sufficient." 


DUNDEE  MORTGAGIC  &  TRUST  INVESTMENT  CO.  V.  HUGHES.         465 

necessary  to  wind  up  its  affairs,  and  at  the  present  date  it  had  no  legal 
existence;  and,  second,  that  in  September,  1SS9,  the  plaintiff  had 
amalgamated  with  the  Alliance  Trust  Company,  a  corporation  of 
Dundee,  Scotland,  and  had  transferred  to  the  latter  company  its 
demand  against  the  defendant,  and  that  under  the  laws  of  Oregon  it 
had  now  no  authoritj''  to  prosecute  the  present  action  in  its  own  name. 
The  plaintiff,  by  replication,  substantially  denied  these  allegations.  .  .' 

Concerning  the  second  question,  it  ma}'  be  said  that  the  record  leaves 
it  doubtful  whether  this  cause  of  action  has  in  fact  been  transferred  to 
the  Alliance  Company.  But  conceding  that  it  has  been  so  transferred, 
I  think  it  may  nevertheless  be  maintained  in  the  plaintiff's  name.  The 
Code  of  Oregon,  while  providing,  as  do  the  codes  of  other  states,  that 
"every  action  shall  be  prosecuted  in  the  name  of  the  real  party  in 
interest"  (section  27,  1  Hill's  Ann.  Laws),  contains  the  further  pro- 
vision, found  in  section  38,  that  "no  action  shall  abate  by  the  death, 
marriage,  or  other  disability  of  a  party ;  or  by  the  transfer  of  any 
interest  therein  if  the  cause  of  action  survive  or  continue.  In  case  of 
death,  marriage  or  other  disability  of  a  party,  the  court  may  at  any 
time  within  one  year  thereafter,  on  motion,  allow  the  action  to  be 
continued  by  or  against  his  personal  representatives  or  successor  in 
interest."  In  construing  these  sections  of  the  code,  it  has  been  held 
in  this  court  that  the  word  "  prosecuted, "  as  used  in  section  27,  means 
' '  commenced, ' '  and  that  when  an  action  has  been  commenced  by  the 
real  party  in  interest  his  subsequent  transfer  of  such  interest  ' '  shall 
not  abate  the  action,  or  prevent  his  prosecuting  it  to  final  judgment, 
or  its  being  so  prosecuted  in  his  name  for  the  benefit  of  whom  it  may 
concern.  "- 

There  can  be  no  doubt  that  the  construction  adopted  by  the  court  in 
Elliott  V.  Teal,  5  Sawy.  188,  is  the  true  one.  Due  force  and  effect  must 
be  given  to  both  sections  of  the  Code.  They  must  be  construed  together. 
So  interpreted,  their  meaning  is  that  all  actions  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  except  in  cases  where,  pendeiite 
lite,  he  transfers  his  interest  to  another.  In  such  a  case  the  transfer 
does  not  operate  to  abate  the  action,  and  no  order  of  substitution  of 
parties  is  required.  It  is  only  in  case  of  the  death,  marriage,  or  other 
disability  of  a  party  to  a  pending  action  that  the  court  is  permitted  or 
required  to  make  an  order  of  substitution.  Judgment  will  be  rendered 
for  the  plaintiff  upon  the  plea.^ 

1  Only  so  mtich  of  the  opinion  is  given  as  relates  to  the  second  point,  on  the  first  point 
the  Court  was  of  opinion  that  the  Oregon  statute  limiting  the  life  of  corporations,  after 
dissolution,  to  five  years  if  necessarj'  for  the  purpose  of  prosecuting  or  defending  actions  by 
or  against  them,  did  not  apply  to  a  foreign  corporation,  and  that  "  the  plaintiff  corporation 
still  exists  for  the  purpose  of  winding  up  its  business."— ^rf. 

2  Citifig,  Elliott  V.  Teal,  5  Sawy.  iSS,  Fed.  Cas.  No.  4,396;  French  v.  Edwards,  4  Sawj-.  12S, 
Fed.  Cas.  No.  5,097;  Moss  v.  Shear,  30  Cal.  475;  Camarillo  v.  Fenlon,  49  Cal.  203. 

3  Accord,  Douglas  v.  Muse  (1900),  —  Kan.  — ,  61  Pac.  Rep.  413,  where  the  answer  averred 
that  plaintiff  had  conveyed  his  interest  since  the  commencement  of  the  action,  and  the  reply 
did  not  deny  this  under  oath,  so  that,  if  material,  it  was  admitted. 


466  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


v.Va' 


HIRSHFBLD,  Suing  on  his  Own  Behalf  and  on    Behalf  of  all   Other 
^       Creditors  of  the  Madison  Square  Bank,  Respondent,  v. 
'  "  (,  FITZGERALD  ET  AL.,  Appellants. 


Court  of  Appeals  op  New  York,  November  22,  1S98. 
[157  N.  Y.  166.] 


Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  reversing  a  judgment  entered  upon  a  decision  of  the  court  dis- 
missing the  plaintiff's  complaint  upon  the  merits  on  trial  at  Special 
Term,  and  ordering  a  new  trial. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are  stated 
in  the  opinion,' 

William  B.  Putney,  Henry  B.  Twonibly  and  John  Jeroloman  ;  Fra?ik- 
lin  Pierce  and  Charles  A.  Boston  ;  Joseph  Fettrctch  ;  John  A.  Straley, — 
for  different  appellants. 

Albert  Stickney,  for  certain  non-appealing  defendants. 

Samuel  Untermyer  and  Louis  Marshall,  for  respondents.^ 

Haight,  J.  — This  action  was  brought  by  the  plaintiff,  as  the  credi- 
tor of  the  Madison  Square  Bank,  in  behalf  of  himself  and  all  other  cred- 
itors of  the  bank  similarly  situated,  who  may  chose  to  come  in  and 
share  the  benefits  and  expenses  of  the  action,  against  the  defendants 
as  stockholders  of  the  bank,  to  enforce  an  alleged  liability  under  sec- 
tion 52  of  the  Banking  Law  of  1S92. 

The  Madison  Square  Bank  was  organized  in  1882  as  a  banking  asso- 
ciation, and  carried  on  its  business  in  the  city  of  New  York  until  about 
the  8th  day  of  August,  1893,  when  it  suspended  payment,  and  an  action 
was  brought  by  the  attorney-general  for  its  dissolution,  which  resulted  in 
a  final  judgment  entered  on  the  24th  day  of  November,  1893,  whereby  the 
banking  association  was  dissolved,  and  the  defendants  Miles  M.  O'Brien 
and  James  G.  Cannon  were  appointed  permanent  receivers.  It  appears 
that  this  action  was  brought  by  the  plaintiff  at  the  solicitation  of  the 
receivers,  who  agreed  with  him  to  pay  all  the  expenses  of  the  action, 
including  counsel  fees.  The  complaint  alleges  that  prior  to  the  com- 
mencement of  the  action  the  plaintiff  requested  the  receivers  to  insti- 
tute an  action  against  the  other  defendants  for  the  enforcement  of  their 
liability  as  stockholders  under  the  act,  and  that  the  receivers,  alleging 
that  no  cause  of  action  existed  in  their  favor  against  the  stockholders, 
refused  to  bring  an  action,  and  that  they  were  consequently  made  defend- 
ants herein,  but  no  personal  judgment  was  demanded  against  them. 

Before  the  trial  of  this  action,  certain  of  the  defendants,  stockholders 
of  the  bank,  entered  into  negotiations  with  the  plaintiff  for  the  pur- 
chase of  his  claim,  which  resulted  in  his  assigning   the  same  to  one 

1  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

2  The  arguments  are  omitted. 


HIRSHFELD   V.    FITZGERALD    KT   AL. 


467 


Robert  Clirehugh,  who  thereupon  stipulated,  ■  as  owner  of  the  claim, 
with  the  attorneys  for  the  defendants,  who  were  stockholders,  that  the 
action  ma}-  be  discontinued  without  costs,  and  that  an  order  may- 
be entered  to  that  effect,  and  also  stipulating  for  a  substitution 
of  attorneys  in  the  place  of  the  attorney  who  had  brought  the 
action  in  behalf  of  Hirshfeld.  The  court  having  refused  to  allow  a 
substitution  of  attorneys  or  a  discontinuance  of  the  action,  Clirehugh  v 
executed  releases  to  the  defendants,  who  had  joined  in  and  contributed 
to  the  purchase  of  the  plaintiff's  claim.  Thereupon,  upon  leave  of  the  1 
court,  supplemental  answers  were  served  by  a  number  of  the  defend- 
ants  setting  up  the  sale  and  assignment  by  Hirshfeld  to  Clirehugh  and 
the  releases  made  by  him.  Upon  the  trial,  which  followed,  these  facts 
appearing,  together  with  the  fact  that  no  other  creditor  had  come  in 
and  been  made  a  party  to  the  action,  the  court  held  and  decided  thatthe/ 
plaintiff"  Hirshfeld  was  not  a  creditor  of  the  bank  and  was  not  entitledl 
to  recover  judgment  for  any  sum  of  money  against  the  stockholders  as 
such  creditor  ;  that  the  action  was  not  prosecuted  by  the  real  party  in 
interest  for  any  claim  due  from  the  bank,  and  that  there  was  no  party 
before  the  court  entitled  to  recover  any  judgment  in  the  action  as  and 
for  a  debt  due  from  the  bank.  Judgment  was  ordered  dismissing  the 
complaint  upon  the  merits.  /From  the  judgment  entered  upon  this 
decision  the  plaintiff"  and  the  receivers  appealed  to  the  Appellate 
Division,     which    court   reversed   the  judgment   and   ordered  a    new 

trial '  "*^ 

The  Appellate  Division  appears  to  have  been  of  the  opinion  that  an 
action  should  be  properly  maintained  in  the  name  of  Hirshfeld,  the 
plaintiff",  after  he  had  sold  and  transferred  his  claim  to  Clirehugh,  and 
after  Clirehugh  had  executed  releases  to  a  number  of  the  defendants  and 
sought  to  discontinue  the  action.  Section  756  of  the  Code  of  Civil  Pro- 
cedure provides  that  ' '  Tn  ra^e  nf  a  transfer  of  interest,  or  devolution 
of  liability,  the  action  may  be  continued^  by  or  against  the  original 
partyj  unless  the  court  directs  the  person,  to  whom  the  interest 
is  transferred,  or  upon  whom  the  liability  is  devolve37~  to  be 
substituted  in  the  action  or  joined  with  the  original  party,  as  the 
case  '  ygqtllftfy. ' ' — Uhder  this  provision  of  the  Code,  it  has  been 
repeatedh'  held  that  the  action  may  be  maintained  in  the  name  of  the 
original  plaintiff",  notwithstanding  that  he  has,  subsequent  to  the 
bringing  of  the  action,  assigned  his  claim  to  another  part3^  It  is  also 
been  held  that  the  bringing  in  of  the  party  to  whom  the  cause  of  action 
has  been  assigned  is  discretionary  with  the  court,  but,  in  continuing 
the  action  in  the  name  of  the  original  assignor,  he  is  deemed  to  act  for 
and  on  behalf  of  his  assignee,  and  to  represent  his  interest  in  the  liti- 
gation. In  no  case  to  which  our  attention  has  been  called  has  the 
plaintiff  been  allowed  to  continue  the  action  after  he  has  assigned  his. 
cause  of  action  in  opposition  to  the  wishes  and  interestsof  his  assignee. 

1  Part  of  the  opinion  is  omitted. 


^"i^ 


y\^ 


-^[yi/ff^  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

<•  /        /If  his  assignee  sees  fit  to  settle  or  demand  that  the  action   be  discon- 
V"^^     tinned,  the  provisions  of  this  section  furnish  no  authority  for  the  fur- 
^,  ^     ther  continuation  of  the  action  or  shield  for  the  plaintiff,  who,  under 
\r^        such  circumstances,  should  continue  to  prosecute  it. 

The  case  of  McGean  v.  M.  E.  R.  Co.,  133  N.  Y.  9,   is  not  in  conflict 

with  these  views.     In  that  case  an  action  had  been  brought  to  restrain 

the  operation  and  maintenance  of  the  defendant's  elevated  railroad  on 

the  street  in  front  of  the  plaintiff"'s  premises  and  to  recover   damages. 

After  issue  was  joined,  the  plaintiff"  conveyed  his  premises  to  another 

partj^  but  expressly  reserved  all  damages  caused,  or  to  be  caused,  by 

the  present,  past,  or  future  maintenance  and  operation  of  the  railroad, 

together  with  the  fee  and  easements  in  the  street.     In  that  case  it  was 

held  that  the  plaintiff"  had  the  right  to  continue  the  action  to  recover 

his  fee  and  rental  damages.     Had  he  not  retained  the  fee  and   rental 

damages,  but  had  included  them  in  the  conveyance  and  the  purchaser 

had  then  settled  with  the  railroad  company,  a  very  different   question 

would  have  been  presented. 

\p^      It  is  now  contended  that  the  action  brought  hy  the  plaintiff"  was  rep- 

.1  resentative  and  on  behalf  of  all  the  creditors  of  the  bank,  and  that  in 

'Y'    '     bringing  the  action  hebecame_a_^^a^i^trustee  for  the  other  creditors, 

**>-^     and  that  he  could  not  settle  or  discontinue  the  _action.     This  question 

^       is  of  "great  importance  and  should  receive  carefuT  thought  and  study; 

for  if  the  appellants  are  correct  in  their  contention,  stockholders  in  an 

action  of  this  kind  have  only  to  buy  out  or  settle  with  the  plaintiff"  to 

defeat  a  recovery  against  them.     The  courts,  however,  are  not  respon- 

^    '     sible  for  the  vStatute.     Our  dutj' is  to  construe  and  not  to  make  it..   .   .^ 

Does   the   plaintiff",    in   bringing   a  representative   action,  become  a 

trustee  lor  the  other  creditors  ?     We  think  not ;  at  least  to  such  an  ex- 

fotiT  ^^TfTT jogTiiT-Q  \\\v[\  t^  Tnrry  nn  thu  litigation  frn;^ their  interests  in 

opposition  to  his  own,  or  after  he  has  settled  his  claim.     It  is  true  that 

tne  capital  stock  of  a  corporation  is  a  trust  fund  for  the  security  of  the 

fi<Jf  creditors,  and  the  amount  recoverable  from  the  stockholders  under  the 

'*^   statute  in  addition  to  the  capital  stock  may  be  treated  as  a  like  security, 

but,  as  we  have  shown,  the  creditor  is  not  permitted  to  bring  an  action 

in  his  own  behalf  alone  for  a  contribution  by  the  stockholders,  for  in  that 

way   he   would  obtain    a   preference   for  himself.     He  must  bring  the 

action  for  himself  and  on  behalf,  not  of  all  the  creditors,  but  on  behalf  of 

those  who  choose  to  come  in  and  share  the  benefits  and  expenses  of  the 

litigation^     HTsnTelatTon  with  the  othercreHTEors  is  one  that  the  law 

creates.     He  assumes  to  prosecute  on  their  behalf  only  in  so  far  as  his 

personal  interests  require.     He  makes  no  agreement  with  them,  and 

they  do  not  accept  him  as  a  trustee  to  represent  them  or  bind  them  by 

his  action.     They  have  the  right  to  come  in  at  any  time,   and  as  soon 

as  they  do,  they  may  take  part  in  the  management  of  the  action.     True, 

it  was  not  necessary  for  them  to  come  in  and  be  made  parties  prior  to 

2  Part  of  the  opinion  is  oniilted. 


^ 


^ 


<A 


HIRSHFELD  I'.  FITZGERALD  ET  AL.  469 

the  entering  of  an  interlocutory  judgment.  When  such  a  judgment  is 
entered,  it  is  effectual  for  all  the  creditors,  for  the  court  then  gives  them 
an  opportunity  to  come  in,  prove  their  claims,  and  share  in  the  recovery. 
If,  however,  they  neglect  to  come  in  and  be  made  parties  at  such  time, 
the}'  will  be  barred  and  not  permitted  to  share  in  the  distribution  of 
the  fund.i 

As  we  have  seen,  the  plaintiff  sold  and  assigned  his  claim  before  any 
of  the  creditors  had  come  in  or  had  served  a  notice  of  motion  to  be 
brought  in  as  parties.  At  the  time  of  the  trial  he  was  not  a  creditor. 
The  person  to  whom  he  had  sold  his  claim  had  stipulated  a  discontinu- 
ance of  the  action,  and  had  executed  a  release  to  many  of  the  defendants. 
The  plaintiff's  assignee,  therefore,  could  not  and  did  not  wish  to  con- 
tinue the  action,  and  the  defending  stockholders,  having  settled  with 
him,  had  the  right  to  have  the  action  discontinued.  We  must  confess 
that  we  regret  the  result  reached,  but,  under  numerous  authorities  in 
this  state  and  England,  to  which  we  have  alluded,  w^e  think  that  we  are 
compelled  to  conclude  that  the  complaint  was  properly  dismissed  by  the 
trial  court. 

The  order  of  the  Appellate  Division  should  be  reversed  and  the  judg- 
ment entered  upon  the  decision  of  the  trial  court  affirmed,  with  costs  in 
all  courts. 

All  concur  except  Gray  and  Vann,  JJ.,  dissenting. 

Order  reversed,  etc.- 

1  Citing,  Hallett  v.  Hallett,  2  Paige,  19;  Kerr  v.  Blodgett,  48  N.  Y.  66;  Brinckerhoff  v.  Bost- 
wick,  99  N.  Y.  194. 

The  court  also  examined  Inness  v.  Lansing,  7  Paige,  583;  Scarth  v.  Chadwick,  14  Jurist,  300; 
Hanford  v.  Storie,  2  Simons  &  Stuart,  196;  Pemberton  v.  Topham,  i  Beavan,  316;  Belmont 
Nail  Co.  V.  C.  I.  &  S.  Co.,  46  Fed.  Rep.  336;  Atlas  Bank  v.  Nahant  Bank,  23  Pick,  4S0.  and 
reached  the  conclusion  that  however  it  might  be  elsewhere  there  was  in  New  York  "no 
escape  from  the  claim  made  by  the  appellants  that  where  an  action  is  brought  by  a  plaintiff 
on  behalf  of  himself  and  others  similarly  situated,  who  come  in  and  share  in  the  expenses, 
he  has  the  right  to  control  the  action  and  may  continue,  compromise,  abandon,  or  discon- 
tinue it  at  pleasure  until  a  creditor  similarly  situated  has  procured  an  order  to  be  made  a 
party  of  the  action,  or  h£is  served  a  notice  of  motion  to  be  brought  in,  or  until  interlocutory 
judgment  is  entered." 

"'  Compare  IValker'v.  Felt  (1880),  54  Cal.  386,  387:  "  Had  the  plaintiff  in  the  action  the  right 
to  dismiss  it,  after  having  transferred  his  interest  in  the  subject  matter  of  the  action  to  other 
parties  ?  Section  3S5  of  the  Code  of  Civil  Procedure  provides  that  in  case  of  any  transfer  of 
interest,  the  action  may  be  continued  in  the  name  of  the  original  party,  or  the  court  may 
allow  the  person  to  whom  the  transfer  is  made  to  be  substituted  in  the  action.  Under  that 
section  it  was  the  right  of  the  successors  in  interest  in  this  case  to  prosecute  this  action  in 
one  of  these  forms.  The  party  who  had  transferred  his  interest  divested  himself  of  any 
power  to  control  the  action.  He  could  not  dismiss  it,  because  his  successors  had  a  right  to 
have  it  continued.  The  validity  of  the  order  of  dismissal  in  this  case  rests  solely  upon  the 
consent  of  the  original  plaintiff,  given  ten  years  after  he  had  transferred  his  interest  in  the 
action.  As  he  had  no  right  to  interfere  with  the  action,  the  Court,  on  being  advised  of  that, 
should  have  vacated  the  order  based  upon  it.'''— Per  Sharpstein,  J. 


470  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

REYNOLDS,    ET  AL  :■•    QUAELY,   AS  ADMINISTRATRIX. 

Supreme  Court  of  Kansas,  July  Term,  1877. 

[iS  Kan.  361.] 

The  opinion  states  the  facts.      Reynolds  and  Reynolds,  defendants, 
bring  the  case  here  on  error. 

A.  H.  Ayers,  for  plaintiffs  in  error. 

Cory  d-  Kimball,  for  defendant  in  error. 

Valentine,  J. — This  was  an  action  on  certain  promissory  notes  and 
a  real  estate  mortgage,  executed  by  Julia  J.  Reynolds  and  Geo.  A.  Rey- 
nolds, to  R.  S.  Stevens,  and  by  him  transferred  to  J.  J.  A.  Quaely.  In 
January,  1875,  Quaely  commenced  this  action  against  Julia  J.  and  Geo. 
A.  Reynolds,  on  said  notes  and  mortgage.  Two  of  the  notes  were  then 
past  due;  the  third  note  had  four  months  yet  to  run  before  maturity. 
On  12th  July,  1875,  Quaely  assigned  said  notes  and  mortgage  to  his 
mother,  Catherine  Quaely,  and  four  days  later,  on  July  i6th,  judgment 
was  rendered  on  said  notes  and  mortgage  in  favor  of  said  J.  J.  A. 
Quaely,  and  against  said  defendants.  On  July  19th,  the  defendants 
filed  a  motion  for  a  new  trial.  On  Sept.  4th,  the  court  still  being  in 
session,  said  motion  was  heard  and  sustained.  The  new  trial  was 
granted  for  the  purpose  of  permitting  the  defendants  to  introduce  addi- 
tional evidence  in  proof  of  the  third  defence  set  forth  in  their  answer. 
On  Nov.  15th,  1875,  the  death  of  the  plaintiff",  J.  J.  A.  Quaely  was  sug- 
gested, and  the  action  was  revived  in  the  name  of  Adah  B.  Quaely, 
administratrix  of  the  estate  of  J.  J.  A.  Quaely,  deceased.  When  J.  J.  A. 
Quaely  died  is  not  shown  by  the  record.  In  December,  1875,  another 
trial  was  had.  On  this  trial  the  court  made  the  following  findings,  and 
rendered  the  following  judgment,  to- wit: 

The  court  finds,  as  conclusions  of  fact — 

ist.  That  J.  J.  A.  Quaely,  deceased,  formerly  plaintiff  in  this  action,  was  the 
owner  and  holder  of  the  notes  and  mortgage  sued  upon  herein  at  the  time  this 
action  was  commenced. 

2d.  That  the  judgment  heretofore  rendered  herein,  and  all  rights  and  benefits 
accruing  therefrom,  or  to  the  proceeds  of  said  notes  and  mortgage,  had  been  on 
the  i2th  of  July,  1875,  assigned  and  transferred  to  Catherine  Quaely,  who  is  now 
the  owner  and  holder  thereof. 

3d.  That  on  the  nth  of  November,  1875,  the  plaintiff,  Adah  B.  Quaely,  was 
duly  appointed  administratrix  of  the  estate,  chattels,  and  credits  of  J.  J.  A. 
Quaely,  deceased. 

4th.  That  the  remaining  facts,  beside  the  above,  are  as  found  and  decided  in 
favor  of  J.  J.  A.  Quaely  on  the  former  trial  of  this  cause. 

And  the  court  finds  as  conclusions  of  law — 1st.  That  the  plaintiff  under  the 
amended  petition  herein,  is  entitled  to  recover  upon  the  notes  and  mortgage  de- 
clared upon,  of  and  from  the  defendants;   2d.   That  such  recovery  should  be  for 


REYNOLDS  HT  AL  T'.   QUAELY,   AS  ADMINISTRATOR.  471 

and  to  the  use  of  Catherine  (juaely,  now  the  real  owner  of  said  notes  and  mort- 
gage. 

And  thereupon,  (the  plaintiff  by  her  attorneys  consenting,)  it  is  by  the  court  con- 
sidered, ordered,  and  adjudged,  that  the  plaintiff  have  and  recover  of  and  from  said 
defendants,  for  the  use  and  benefit  of  said  Catherine  Quaely,  assignee,  $5,458-32, 
together  with  the  costs  of  this  action,  taxed  at  $ .  And  it  is  further  con- 
sidered, ordered,  and  decreed,  that  unless  said  judgment,  interest,  and  costs,  be 
paid  within  twenty  days  from  this  date,  the  sheriff  of  this  county  shall  proceed 
to  advertise  and  sell,  without  appraisement,  the  mortgaged  premises,  and  apply 
the  proceeds  thereof  as  hereinafter  provided.  [The  details  of  how  the  property 
shall  be  advertised  and  sold,  and  how  the  proceeds  thereof  shall  be  disposed  of 
are  stated,  and  then  the  judgment  proceeds  as  follows:]  And  execution  is  awarded 
for  any  balance  of  the  judgment  remaining  unpaid  after  the  sale  of  said  premises 
and  application  of  the  proceeds,  as  hereinbefore  provided. 

The  defendants  below,  who  are  now  plaintiffs  in  error,  claim  that 
this  judgment  is  erroneous  and  illegal.  And  first,  they  claim  that  the 
actual  plaintiff  in  this  action,  Adah  B.  Quaely,  administratrix  of 
the  estate  of  J.  J.  A.  Quaely,  deceased,  has  no  interest  in  the  subject 
matter  of  the  action,  and  that  the  real  party  in  interest,  Catherine 
Quael}',  is  not  a  party  to  the  suit,  and  therefore  that  no  such  judgment 
as  was  rendered  in  this  case,  could  legally  be  rendered. 

They  claim,  secondly,  that  a  judgment  which  authorizes  a  sale  of 
real  estate  for  the  satisfaction  of  a  debt,  and  provides  that  the  proceed- 
ings for  such  sale  may  be  commenced  within  twcjity  days  and  that  the 
real  estate  may  be  sold  ivithout  appraisement,  is  not  warranted  by  law. 
And  thirdly,  they  claim  that  the  court  below  also  erred  in  rendering  a 
judgment  (as  the  court  did  below  in  this  case)  upon  a  note  which  was 
not  due  when  this  action  was  commenced. 

We  sustain  the  first  and  second  claims  of  the  plaintiffs  in  error,  but 
express  no  opinion  in  regard  to  the  third.  Said  notes  and  mortgage 
did  not  belong  to  J.  J.  A.  Quaely  at  the  time  of  his  death.  They  do 
not  now  belong  to  his  estate.  They  are  not  assets  in  the  hands  of  the 
administratrix,  and  there  is  no  law  authorizing  the  administratrix  to 
administer  upon  them.  (Seeexecutor-and-administrator  act,  Gen.  Stat. 
439.  \l  39-  40 ;  p.  440,  II  46,  47.  48;  p.  461,  §  152).  It  is  probably  true, 
under  section  40  of  the  code  (Gen.  Stat.  637),  that,  if  J.  J.  A.  Quaely 
had  lived,  the  action  might  have  proceeded  to  its  final  determination  in 
his  name,  notwithstanding  his  transfer  of  interest.  Btit  no  authority 
is  any  where  given  for  allowing  such  an  action  to  proceed  in  the  name 
of  a  personal  representative  of  a  deceased  person.  A  person  while  liv- 
ing may  take  the  risks  and  chances,  and  suffer  the  inconveniences  and 
possible  losses,  of  allowing  an  action  to  still  proceed  in  his  name  after 
he  has  transferred  all  interest  in  the  subject-matter  thereof;  but  after 
his  death,  his  administrator  has  no  such  right.  The  administrator  has 
a  right  to  attend  only  to  the  affairs  of  the  estate.  The  estate  is  not  to 
pay  him  fordoing  anything  else,  and  the  estate  is  not  to  take  any  risks 
for  an3'thing  else.     Nor  does  the  administrator  become  the  guardian  for 


472  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

those  persons  for  whom  his  intestate  was  guardian.  Indeed,  the  admin- 
istrator is  not  guardian  for  any  person  or  for  anything  except  for  mat- 
ters connected  with  the  estate.  When  J.  J.  A.  Quaely  died,  the  action 
should  have  been  revived  and  prosecuted  in  the  name  of  Catherine 
Quaely,  his  successor  in  interest,  and  not  in  the  name  of  his  personal 
representative  to  whom  his  right  did  not  pass.  (Civil  Code,  §§  40,  425. 
430.)  There  might  be  cases  where  it  would  be  proper  for  both  the 
administrator  and  the  person  claiming  to  be  the  successor  in  interest  to 
be  made  parties,  and  to  allow  them  to  interplead  for  the  purpose  of 
determining    which   was    entitled   to   the    judgment    that    might  be 

recovered.^ 

The  judgment  of  the   court   below  will  be  reversed,  and  the   cause 
remanded  for  further  proceedings. 

All  the  Justices  concurring. 


TUFFREE  ET  AL.,  Respondents,  v.  STEARNS  RANCHOS  COM- 
PANY, Appellant. 

Supreme  Court  of  California,  April  14.   i899- 
[124  Cal.  306.] 

Appeal  from  a  judgment  of  the  Superior  Court  of  Los  Angeles 
County  and  from  an  order  denying  a  new  trial. 

The  facts  are  stated  in  the  opinion  of  the  court. 

E.   W.  McGraw,  for  appellant. 

/.  5.  Chapman,  and  Albert  M.  Stephe?is,  for  respondents. 

Garoutte,  J  — Moses  Hopkins,  claiming  to  own  an  interest  in  a 
tract  of  land,  was  joined  with  others  as  a  party  defendant  in  an  action 
to  quiet  title.  Bicknell  &  White  appeared  as  attorneys  for  all  the 
defendants.  During  the  litigation  and  five  years  prior  to  judgment, 
Hopkins  transferred  his  interest  in  the  property  to  the  Stearns  Ranchos 
Company.  After  judgment,  and  prior  to  an  appeal  therefrom  by 
plaintiffs,  Hopkins  died.  Thereafter  Bicknell  &  White  accepted 
notice  of  appeal  in  behalf  of  all  the  defendants,  and  the  case  was  heard 
and  decided  in  this  court  upon  its  merits.  Upon  the  return  of  the 
remittituf  to  the  lower  court  a  judgment  was  entered  in  accordance  with 
the  directions  therein  contained.  Whereupon  the  Stearns  Ranchos 
Company,  E.  W.  McGraw,  its  attorney,  having  had  itself  substituted 
as  a  party  defendant,  moved  to  amend  the  judgment  as  to  the  interest 
represented  under  the  name  of  Moses  Hopkins,  upon  the  ground  that 
this  court  failed  to  obtain  jurisdiction  over  the  Hopkins  interest  in  the 
realty  by  reason  of  the  fact  of  his  death  at  the  time  the  notice  of  appeal 
was  served  upon  Bicknell  &  White.  No  substitution  of  any  party 
defendant  in  lieu  of  Hopkins  was  ever  made  until  the  substitution  of  the 

1  Part  of  the  opinion,  on  another  point,  is  omitted. 


TUFFREE  ET  AL  V.  STEARNS  RANCHOS  COMPANY.  473 

ranches  company  as  stated.  The  present  appeal  is  now  prosecuted 
from  the  order  of  the  trial  court  refusing  to  amend  the  judgment  as 
prayed  for. 

Section  3S5  of  the  Code  of  Civil  Procedure  reads  :  ' '  An  action  or 
proceeding  does  no*,  abate  by  the  death  or  any  disability  of  a  party,  or 
b}'-  the  transfer  of  any  interest  therein,  if  the  cause  of  action  survive  or 
continue.  ...  In  case  of  any  other  transfer  of  interest  the  action 
or  proceeding  ma}-  be  continued  in  the  name  of  the  original  party,  or 
the  court  ma}'  allow  the  person  to  whom  the  transfer  is  made  to  be  sub- 
stituted in  the  action  or  proceeding. "  This  provision  of  the  law  was 
construed  in  Walker  v.  Felt,  54  Cal.  386,  where  the  court  said  :  "  Sec- 
tion 3S5  of  the  Code  of  Civil  Procedure  provides  that  in  case  of  any 
transfer  of  interest  the  action  may  be  continued  in  the  name  of  the 
original  part}-,  or  the  court  may  allow  the  person  to  whom  the  transfer 
is  made  to  be  substituted  in  the  action.  Under  that  section  it  was  the 
right  of  the  successors  in  interest  in  this  case  to  prosecute  this  action 
in  one  of  these  forms.  The  party  who  had  transferred  his  interest 
divested  himself  of  any  power  to  control  the  action.  He  could  not  dis- 
miss it,  because  his  successors  had  a  right  to  have  it  continued.  The 
validity  of  the  order  of  dismissal  in  this  case  rests  solely  upon  the  con- 
sent of  the  original  plaintiff,  given  ten  years  after  he  had  transferred  his 
interest  in  the  action.  As  he  had  no  right  to  interfere  with  the  action, 
this  court,  on  being  advised  of  that,  should  have  vacated  the  order 
based  upon  it."  In  Malo7ie  v.  Big  Flat  Gravel  Min.  Co.,  93  Cal.  384, 
the  court  said,  "  Under  this  section,  if  property  is  conveyed  during  the 
pendency  of  litigation  in  regard  to  it,  the  grantee  may  thereafter  con- 
tinue to  prosecute  or  defend  the  case  in  the  name  of  his  grantor,  or  may 
cause  himself  to  be  substituted  in  his  place."  In  Plumnier  v.  Brown, 
64  Cal.  430,  it  is  declared  :  "  After  transferring  his  entire  interest  in 
the  subject  of  the  controversy,  the  defendant  Vv-as  only  nominally  a 
party  to  the  action.  The  real  parties  in  interest  were  his  grantees. 
The  entry  of  his  default  affected  them,  not  him. " 

It  is  quite  apparent  from  these  authorities  that  the  statute  contem- 
plates the  prosecution  or  defence  of  the  action  by  the  transferee  of  the 
interest  sold.  And  he  may  prosecute  or  defend  in  his  own  name,  by 
obtaining  an  order  of  substitution,  or  he  may  prosecute  or  defend  in 
in  the  name  of  the  original  party.  That  the  legislature  has  the  power 
to  say  that  an  action  maybe  prosecuted  or  defended  in  the  name  of  one, 
not  the  real  party  in  interest,  we  have  no  doubt. 

Hopkins  at  the  time  of  his  death  having  no  interest  in  the  property, 
his  executor  or  administrator  was  not  a  proper  party  to  be  substituted 
as  defendant. 

It  therefore  follows  that  the  action  either  should  have  been  continued 
in  his  name  or  his  vendee  should  have  been  substituted.  Yet  the 
statute  and  the  cases  cited  plainly  say  that  the  vendee  has  the  right  to 
exercise  the  option  of  substitution,  or  continue  the  litigation  in  the 


474  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

name  of  the  original  party.  If  the  original  party  be  a  mere  nominal 
party,  and  the  vendee  is  the  real  party  in  interest— if  the  nominal 
party  has  no  right  to  conduct  the  litigation  upon  any  particular  lines 
as  against  the  wishes  of  the  real  party  in  interest ;  if  the  real  party  in 
interest,  the  vendee,  has  the  control  of  the  litigation,  and  this  is 
decided  by  the  cases  cited  from  the  reports  of  this  state — then  it  would 
seem  to  be  wholly  immaterial  whether  the  original  party  to  the  action 
lives  or  dies.  For  the  purposes  of  the  litigation  he  is  a  mere  dummy 
anyhow,  a  John  Doe,  alias;  at  least,  this  must  be  true  aside  from  any 
question  of  costs,  and,  as  to  those  matters,  certainly  the  real  defendant 
has  no  reason  to  complain. 

Possibly  the  opposing  party,  for  reasons  readily  perceptible,  might 
be  desirous  of  having  the  real  party  in  interest  substituted  as  a  party 
to  the  record ;  but  if  such  party  is  willing  to  have  matters  stand 
statti  quo,  and  the  real  party  in  interest  is  content  to  have  matters  pro- 
ceed upon  the  old  lines,  we  see  no  legal  bar  to  the  practice.  The  real 
plaintiff  or  defendant  simply  uses  the  name  of  another  in  the  further 
prosecution  or  defence  of  the  action. 

The  Stearns  Ranchos  Company,  a  vendee  of  Hopkins,  knew  all  about 
the  pending  litigation.  A  lis  pendens  was  filed.  Actual  notice  of  the 
litigation  was  before  it.  By  afiidavit  it  is  admitted  that  it  had  "casual 
notice  "  of  the  appeal  to  this  court.  The  attorney  of  the  company  was 
E.  W.  McGraw,  who  was  also  a  director  of  the  corporation.  He  is  now 
the  attorney  representing  the  corporation  defendant  upon  this  appeal. 

Prior  to  the  first  judgment  in  the  trial  court  he  assisted  in  the  taking 
of  depositions  to  be  used  upon  that  trial,  representing  some  of  the 
defendants.  He  filed  a  petition  for  rehearing  in  this  court,  signing 
himself  counsel  for  the  defendants.  The  ranchos  company  was  the 
owner  of  the  interests  of  all  the  defendants  before  the  judgment  was 
rendered  in  the  trial  court,  and  it  is  quite  apparent  that  it  knew 
all  about  this  litigation  from  start  to  finish — at  least,  as  to  all  material 
and  substantial  matters.  Under  these  conditions  this  conduct  upon 
the  part  of  the  ranchos  company  can  only  mean  that  it  defended  this 
action  in  the  name  of  Hopkins  from  the  time  it  became  his  vendee, 
and  it  should  not  now  be  heard  to  the  contrary.  The  ranchos  company 
knowing  that  Bicknell  &  White  were  appearing  at  all  times  and  upon 
all  occasions  for  the  defendants,  we  are  confirmed  in  the  belief  that 
these  attorneys,  as  to  the  question  now  before  us,  were  representing  it 
in  this  litigation.  In  representing  Hopkins  in  name  they  were  but 
representing  the  compan5\  The  ranchos  company,  in  matters  material 
to  the  appeal,  was  a  party  to  the  action  under  the  name  of  Hopkins, 
and,  of  necessity,  Hopkins'  deoth  was  wholly  an  immaterial  matter 
as  in  any  way  changing  the  aspect  or  situation  of  the  litigation. 
Pedlar  V.  Strand,  ii6  Cal.  462,  and  cases  akin  to  it,  do  not  bear  upon 
the  proposition  here  under  consideration.' 

1  Fart  of  the  opinion,  on  another  point,  is  omitted. 


EMERSON  ET  AL  V.  MCWHIRTER  KT  AL.  475 

For  the  foregoing  reasons  the  respective  orders  refusing  to  amend  the 
judgment  and  correct  the  fde  marks  are  affirmed.  The  judgment  and 
order  denying  a  new  trial  are  also  affirmed. 

Harrison,  Van  Dyke,  McFarland,  and  Henshaw,  JJ.,  concurred. 


EMERSON  IvT  AL.   :-.   McWHIRTER  ET  AL. 
Supreme  Court  ok  California,  INLyrch  31,  1900, 

[ CaL.  ]■ 

The  facts  appear  in  the  opinion. 

Crittenden  Hampton  and  /.  /'.  O'Brien,  for  appellants. 

F.   ]V.  Street  and  W.  C.  Kennedy,  for  respondents. 

Per  Curiam. — In  an  action  brought  by  the  plaintiffs  to  have  their 
title  to  certain  mining  property'  quieted  as  against  defendant  McWhir- 
ter,  judgment  was  rendered  in  favor  of  McWhirter  declaring  him  to  be 
the  owner  and  entitled  to  the  possession  of  the  ground,  and  forever 
enjoining  the  plaintiff  from  asserting  any  title  thereto.  This  judgment 
was  entered  May  4,  1S99,  and  on  May  9th  McWhirter's  title  to  the 
ground  became  vested  in  the  Yosemite  Gold- Mining  Company  (a  cor- 
poration) by  a  conveyance  from  him.  Proceedings  in  the  superior 
court  were  thereafter  continued  between  the  original  parties.  The 
plaintiffs  moved  for  a  new  trial,  and,  their  motion  having  been  denied 
September  8th,  an  appeal  was  taken  by  them  on  the  same  day  from  this 
order  and  from  the  judgment,  and  the  record  has  been  filed  in  this 
court.  A  motion  is  now  made  hy  the  corporation  to  be  substituted  ' '  as 
party  defendant  in  the  place  and  stead  of  McWhirter. " 

The  provision  of  section  385,  Code  Civ.  Proc,  that,  in  case  of  an}' 
transfer  of  interest  in  a  cause  of  action,  the  action  may  be  continued 
in  the  name  of  the  original  party,  "  or  the  court  may  allow  the  person 
to  whom  the  transfer  is  made  to  be  substituted  in  the  action  or  proceed- 
ing,"  has  reference  to  a  transfer  of  interest  before  the  entry  of  judg- 
ment in  the  action.  After  the  rights  of  the  parties  to  the  action  have 
been  finally  determined,  and  the  judgment  thereon  entered,  others  suc- 
ceeding to  their  interests  in  the  property  affected  by  the  action  take  the 
same  subject  to  the  judgment,  and  with  all  its  protection.  The  pro- 
vision in  the  section  in  permissive,  and  the  discretion  of  the  court  in 
making  the  order  is  to  be  exercised  in  view  of  all  the  circumstances 
attending  the  application.  In  the  present  case,  as  the  corporation  and 
McWhirter  are  represented  b}'  the  same  attorney, — the  motion  for  the 
substitution  and  the  admission  of  its  service  being  both  signed  by  him, 
— there  would  seem  to  be  no  occasion  for  making  the  order,  as  the 
rights  of  each,  both  for  himself  and  as  against  the  other,  can  be  ade- 
quately protected.     The  motion  is  denied. 

1  S.  C,  60  Pac.  Rep.  774. 


476  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


IV.      THE   REAL  PARTY  IN  INTEREST  WHEN  THE  ASSIGNMENT  IS  SUBJECT 

TO  A  CONDITION,  EXPRESSED  ON  THE  FACE  OF  THE  ASSIGNMENT 

OR  IN  A  COLLATERAL  AGREEMENT. 

WEBB  cSi  HEPP   V.  MORGAN,   McCLUNG   &  COMPANY. 

Supreme  Court  of  Missouri,  March  Term,  1851. 

[14  Mo.  428.] 

On  July  13,  1849,  the  plaintififs  below,  now  the  defendants  in  error, 
sued  on  promissorj^  notes,  dated  Feb'y  20th,  1848,  payable  eight  months 
after  date  to  L.  M.  Wiley  &  Co.,  and  assigned  by  them,  on  July  i,  1849, 
to  the  plaintiffs.  In  his  answer  the  defendant  Webb  admitted  the 
execution  of  the  notes  sued  on  but  denied  that  the  plaintiffs  were  the 
owners  of  these  notes,  and  stated  that  Wiley  &  Co.  were  the  only  per- 
sons really  interested  in  them.  The  answer  of  Hepp  was  in  substance 
the  same  as  Webb's.  Judgment  was  rendered  below  for  the  amount 
claimed,  with  interest.     A  motion  for  a  new  trial  was  overruled. 

It  appears  that  on  the  trial  below  the  plaintiffs  admitted  that  they  had 
no  interest  in  the  notes,  and  were  acting  merely  as  agents  for  Wiley  & 
Co.,  to  collect  the  same.  The  reasons  contained  in  the  motion  for  a 
new  trial  are  that  the  court  erred  in  entering  judgment  against  the 
defendants;  that  the  verdict  and  finding  of  the  court  below  were  against 
evidence,  against  law,  and  against  law  and  evidence. 

Hudson,  for  appellant. 

Kirtley,  for  appellee.' 

Ryland,  J. — The  only  question  arising  in  this  case  is,  can  an  assignee 
to  whom  a  promissory  note  has  been  assigned  for  collection,  bring  the 
suit  on  the  note  in  his  name  as  assignee,'  undei  the  new  statute  regu- 
lating the  "practice  in  courts  of  justice?"  The  appellants,  who  were 
defendants  below,  contend  that  the  plaintiffs  below  can  not  maintain 
their  action,  under  the  above  mentioned  statute,-  because  they  say  that 
the  said  plaintiffs  were  not  the  party  really  interested  in  the  suit. 

The  first  section  of  the  3rd  art.  of  said  act  is  as  follows : 

"  Every  civil  action  must  be  prosecuted  in  the  name  of  the  real  party  in  interest, 
except  as  othervkfise  provided  in  the  next  section. 

"Sect.  2.  An  executor  or  administrator,  a  trustee  of  an  express  trust,  or  a 
person  expressly  authorized  by  statute,  may  sue,  in  his  own  name,  without  join- 
ing with  him  the  person  for  whose  benefit  the  suit  is  prosecuted. 

"Sect.  3.  In  case  of  an  assignment  of  a  thing  in  action,  the  action  by  the 
assignee  shall  be  without  prejudice  to  any  set-off,  or  other  defence,  existing  at 
the  time  of,  or  before  notice  of  the  assignment;  but  this  section  shall  not  apply 
to  bills  of  exchange,  nor  to  promissory  notes  for  the  payment  of  money  expressed 

1  The  reporter's  statement  of  facts  has  been  abridged;  the  arguments  are  omitted. 

2  The  first  section  of  the  3rd  article  of  the  new  code. 


HILTON  v.   WARING  AND  REED.  477 

on  the  face  thereof,  to  be  for  value  received,  negotiable  and  payable  without 
defalcation." 

By  the  act  concerning  "bonds  and  notes,  "  passed  in  1845  (see  Rev. 
Code,  1845,  p.  190)  "all  bonds  and  promissory  notes  for  money  or 
property  shall  be  assignable  by  endorsement  on  snch  bond  or  note,  and 
the  assignee  may  maintain  an  action  thereon  in  his  own  name  against 
the  obligor,  or  maker,"  &c. 

There  is  no  doubt  that  the  legislature  did  not  intend  by  the  new  act 
concerning  "practice  in  courts  of  justice, "  to  repeal  the  law  of  1845, 
concerning  bonds  and  notes.  They  well  knew  that  an  assignee  could 
sue  in  his  own  name  ;  and  the  3rd  section  of  the  new  act  above 
quoted  plainly  implies  the  right  of  an  assignee  to  sue  in  his  own  name. 
But  in  this  case,  it  is  said  that  the  assignees  have  no  interest  ;  they 
are  merely  the  agents  for  collection.  We  consider  that  the  assignment 
to  them  creates  in  them  such  legal  interest,  that  they  thereby  become 
the  persons  to  sue.  The  assignment  passes  to  them,  under  the  law  of 
1845,  the  legal  title  to  the  note,  and  makes  it  their  duty  to  sue — and 
we  think  the  court  below  acted  properly  in  overruling  the  defendants' 
motion,  and  in  rendering  judgment  for  the  plaintiffs. 

Whenever  the  evidence  shows  the  endorsement  in  assignment  of  the 
note  or  bill  of  exchange'  or  bond  to  the  plaintiff,  that  assignment 
makes  such  plaintiff  the  party  in  legal  interest  ;  and  authorizes  the 
action  in  his  name.  We  can  not  believe  that  the  legislature  intended 
that  the  courts  should  permit  a  defendant  to  come  forward  with  such  a 
matter  of  defence  as  is  here  set  up.  If  he  has  a  valid  claim  or  defence 
against  the  original,  (payee,)  he  can  avail  himself  of  it  under  the 
statute  ;  see  sec.  3,  above  quoted. 

We  think  the  design  of  the  court  below  must  be  consonant  with  the 
principles  of  law,  and  best  calculated  to  promote  right  and  justice.  ^ 

Judge  Napton  concurring,  it  is  therefore  agreed  that  the  judgment  yf 

below  be  affirmed.  H^C*^ 

HILTON  V.  WARING  AND  REED.     ^^  \ijj^^    /^ 

Supreme  Court  of  Wisconsin,  June  Term,  185S.  U,    '*  \^       f 

[7  H-^/^.  492.]  A^&^\i^'' 

Action  upon  a  promissory  note,  brought  by  the  appellant  against  the    "^ 
respondents. 

The  complaint  states,  on  information  and  belief,  that  on  August  3, 

1855,  the  defendants  made  their  proniissor}-  note  in  writing,  whereby 
they  promised  to  pay  Enos  Beall  or  order,  $1,288.92,  by  March  i,  1857, 
and  then  and  there  delivered  the  same  to  said  Beall ;  that  on  April  15, 

1856,  Beall  made  his  promissory  note  payable  to  the  plaintiff  or  order. 


478  IN  WHOSE  NAME  THE  ACTION  SHOULD  EE  BROUGHT. 

on  June  i,  1856,  for  $537.22;  that  the  said  Enos  Beall,  on  April  15, 
1856,  in  writing,  assigned  and  delivered  the  promissory  note  of  the 
defendants  to  the  plaintiff,  as  collateral  security  for  the  payment  of  the 
said  sum  of  $537.22,  according  to  the  conditions  of  Beall 's  said  promis- 
sory note  ;  that  the  defendant  Waring  had  notice,  and  the  plaintifi 
believes  that  Reed  also  had  notice,  of  the  assignment  to  the  plaintiff, 
as  collateral  security  of  the  promissory'  note  made  and  delivered  by 
them  to  Beall,  before  its  maturity. 

The  plaintiff,  upon  his  knowledge,  says,  that  he  is  now  the  lawful 
owner  and  holder  of  the  said  promissory'  note,  made  and  delivered  by 
the  said  Enos  Beall  to  the  plaintiff,  on  April  15,  1856,  whereby  he 
promised  to  pay  to  the  plaintiff,  or  his  order,  the  sum  of  $537.22,  and 
that  the  said  Enos  Beall  is  justly  indebted  to  him  thereupon,  in  the 
sum  of  $537.22 ;  that  though  the  said  promissory  note,  made  and 
delivered  by  the  said  defendants  to  the  said  Enos  Beall,  and  by  the 
said  Enos  Beall  assigned  and  delivered  to  the  plaintiff,  became  due 
before  the  commencement  of  this  action,  yet  they,  the  said  defendants, 
have  not  paid  the  same  to  the  plaintiff,  or  any  part  thereof. 

And  the  plaintiff  further  says  that  he  is  now  the  lawful  holder  of  the 
said  promissory  note  of  the  defendants,  made  and  delivered  by  them  to 
Enos  Beall,  on  August  3,  1855,  and  by  the  said  Beall,  on  April  15,  1S56, 
assigned  to  the  plaintiff  as  collateral  security,  and  that  the  defendants 
are  indebted  to  him  by  virtue  of  said  assignment  and  delivery  by  said 
Enos  Beall  of  said  note  of  defendants,  thereupon,  in  the  sum  of  $1288.92, 
principal,  with  interest  thereon,  from  March  i,  1857.  Wherefore  the 
plaintiff  demands  judgment,  &c. 

A  demurrer  to  the  complaint  was  sustained,  and  the  plaintiff 
appealed.' 

Smith  V.  Keyes,  for  the  appellant. 
Wheeler  V.  Kimball,  for  the  respondents. 

By  the  Court,  Cole,  J.— The  objections  taken  to  the  complaint  by  the 
.  demurrer,  are: 
AA^^  f  I.  That  it  appears  upon  the  face  thereof  that  the  same  does  not  state 
/  facts  sufficient  to  constitute  a  good  cause  of  action;  and 
/  2.  For  that  it-aauears  upon  the  face  thereof  that  there  is  a  defect  of 
parties  defendant,  in  this:  it  appears  npnn  thp  tnnpni  the  complaint  that 
I    Enos  Beall  is  a  necessary  party  defendant. 

We^^o^ot  deem  it  necessary  to  say  more  in  answer  to  the  first  objec'- 
tion  taken  to  the  complaint,  than  to  remark  that  in  our  opinion  the 
complaint  does  state  facts  sufficient  to  constitute  a  cause  of  action. 
Perhaps  the  complaint  unnecessarily  sets  forth  the  interest  which  Hil- 
ton, as  pledgee,  has  in  the  note  of  the  defendants.  Being  the  bona  fide 
holder  of  that  note  he  might  undoubtedly  have  brought  his  action  upon 
it,  and  recovered  judgment  for  the  amount  due  thereupon,  regardless  of 
any  interest  the  pledger,  Beall,  might  have  in  the  proceeds  after  the 

1  The  reporter's  statement  of  facts  has  been  abridged. 


WILLIAMS  V.  NORTON.  479 

payment  of  the  note  which  he  had  given  to  Hilton.  But  the  fact  that 
the  complaint  does  disclose  the  true  nature  of  the  transaction,  and  that 
Hilton  took  this  note  as  collateral  security  for  the  one  which  Beall  had 
given  him,  by  no  means  renders  the  complaint  bad. 

Neither  can  weconceive  that  it  was  necessary  to  make  Beall  a  party 
to  this  action.  It  appears  he  had  given  a  note  to  the  appellant  for 
$537.22,  and  to  secure  the  payment  of  it  had  turned  out  the  note  upon 
which  the  suit  was  brought,  as  collateral  security.  What  earthly 
necessity  could  there  be  of  making  him  a  party  to  this  action  ?  None 
whatever.  He  had  a  residuary  interest  in  the  note,  to  be^ure;  for,  if 
Hilton  realized  more  than  his  debt  Jrom  the^^a;iurity^,  hejwould  be  com- 
peliea  to  account  to  Beall  for  tTie  overplus.  But  it  was  not  necessary 
that  he  snould  be  a  party  to  the  action  to  collect  the  amount  of  THe  re- 
spondent's  note.     All   interest  he  had  in  that  matter  was   that  they 


should  pay  ttieir  note  with  the  least  unnecessary  delay. 

The  order  of  the  circuit  court  sustaining  the  demurrer  must  be 
reversed  and  the  cause  remanded  to  the  circuit  court  for  further  pro- 
ceedings according  to  law.  ^ 


WILLIAMS  :■.  NORTON. 
Supreme  Court  of  Kans.\s,  February,  1865. 
[3  Kan.  295.] 

This  was  an  action,  tried  before  a  jur^-,  brought  on  a  promissory 
note  alleged  to  have  been  transferred  to  plaintiff  as  security  for  a  debt, 
with  power  to  sue  in  his  own  name.  The  plaintiff  alleged  that  at  the 
time  of  the  suit  he  was  the  legal  owner  and  holder  of  the  note.  Among 
other  defences,  including  a  general  denial,  the  answer  denied  that  the 
plaintiff"  was  the  legal  owner  and  holder  of  the  note  sued  upon. 

The  plaintiff"  having  rested,  the  defendant  moved  for  a  non-suit, 
and  the  motion  being  sustained,  judgment  was  ordered  for  defendant 
for  costs.  A  motion  to  set  aside  the  order  granting  the  motion  for 
non-suit  was  overruled. 

W.  P.  Gambcll,  for  plaintiff  in  error. 

Wm.  G.  Mathias  and  Lotiis  Bumes,  for  defendant  in  error. 

By  the  Court,  Crozier  C.  J. — The  execution  of  the  note  was 
admitted  by  the  pleadings,  but  the  assignment  to  the  plaintiff"  was 
denied.  The  defendant  denied  that  he  was  the  lawful  owner  or  holder 
of  it,  and  hence  was  not  the  real  part}-  in  interest,  as  required  by  the 
32d  section  of  the  Code. 

The  evidence  showed  that  there  was  no  written  indorsement,  trans- 
fer, or  assignment  of  the  note  to  the  plaintiff".     None  was  necessary  to 

1  See  also,  Curtis  v.  Mohr  (1864),  18  Wis.  615;  Union  National  Bank  v.  Roberts  (1878),  45 
Wis.  373;  Peck  V.  Yorks  (1878),  75  N.  Y.  421;  Butler  v.  Rockwell  (1890),  14  Colo.  125,  134. 


480  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

enable  him  to  sue  in  his  own  name.  A  negotiable  promissor}^  note  may 
be  assigned  orally;  a  mere  delivery  for  a  valuable  consideration  will 
pass  the  title.  Any  beneficial  interest  in  the  proceeds  of  a  note,  accru- 
ing from  the  payee  to  the  transferee,  will,  upon  a  delivery  of  the  note 
with  an  understanding  that  he  is  to  receive  the  money  on  it,  be  a  suffi- 
cient consideration  to  vest  in  the  transferee  such  title  as  will  enable 
him  to  sue  in  his  own  name ;  and  that  too  although  he  may  not  be 
entitled  to  apply  to  his  own  use  the  whole  proceeds.  A  delivery  b}'  the 
payee  to  his  surety  or  indemnity,  with  authority  to  receive  the  mone}- 
and  pay  the  principal's  debt,  wnll  enable  the  surety  to  sue  in  his  own 
name.  He  will,  within  the  meaning  of  the  Code,  be  the  "  real  party  in 
interest. ' ' 

Applying  these  principles  to  the  testimony  of  the  plaintiff,  it  will 
be  found  sufficient  to  have  warranted  a  verdict  in  his  favor.  The  pos- 
session of  the  note  was  admitted.  It  went  into  the  possession  of  the 
plaintiff  by  authority  of  the  payee.  The  former,  if  not  the  creditor  of 
the  latter,  was  his  surety-,  and  was  authorized  to  receive  the  money  by 
express  stipulation.  The  existence  of  these  facts  would  give  the  plain- 
tiff a  right  to  a  verdict,  and  his  own  testimony  tended  to  establish  all 
of  them.  Such  being  the  situation,  the  court  not  only  erred  in  dismiss- 
ing the  action,  but  the  error  prejudiced  the  substantial  rights  of  the 
plaintiffi 

Something  was  said  in  the  argument  about  the  non-production  of  the 
note  at  the  trial.  There  was  no  necessity  of  offering  it  in  evidence. 
Every  thing  such  a  performance  would  have  proved,  or  tendered  to 
prove,  was  admitted  bj^  the  pleadings. 

The  production  of  the  paper  being  wholly  unnecessarj-  as  a  matter 
of  evidence,  the  plaintiff  was  not  required  from  legal  considerations  to 
perform  an  act  so  entirely  supererogator}-. 

The  judgment  will  be  reversed  and  the  court  below  ordered  to  set 
aside  the  non-suit  and  proceed  with  the  cause. 
All  the  justices  concurring.' 

1  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

See  also,  IVichita  National  Bank  v.  Alaltby  (1S94),  53  Kan.  567:  "  In  an  action  upon  a  cer- 
tificate of  deposit  which  is  in  form  a  negotiable  instrument  and  is  not  in  the  possession  of 
the  plaintiff,  and  where  ownership  is  alleged  by  the  plaintiff,  an  unverified  answer,  denying 
that  plaintiff  is  the  owner  and  holder  of  the  certificate  and  alleging  that  another  was  the 
owner  and  had  drawn  the  same  from  the  bank,  presents  an  issue  for  trial  which  precludes 
the  sustaining  of  a  motion  for  judgment  upon  the  pleadings  without  proof." — Ed. 


GRADWOHL  V.   HARRIS  AND  TURRILL,  ETC.  481 


GRADWOHL  V.  HARRIS  AND  TURRILIv,  Defendants,  AND 
WAUGENHEIM  AND  BLUM,  Intervenors. 

Supreme  Court  of  California,  October,  1S65. 

[29  Ca/.    150.] 

This  action  was  brought  to  recover  moneys  alleged  to  have  been 
advanced  by  Waugenheim  &  Blum  on  the  following  contract : 

"  We,  the  undersigned,  agree  to  refund  and  pay  within  thirty  days,  to  Messrs. 
Waugenheim  &  Blum,  such  sum  or  sums  as  they  may  pay  to  the  order  or  certifi- 
cate of  William  A.  Johnson,  (a  foreman  of  the  Silver  Mountain  Toll  Road  Com- 
pany,) given  by  him  to  any  employees  who  have  labored  for  said  company  under 
him;  also,  to  the  order  or  certificate  as  above  of  George  Phillips,  a  foreman  of 
said  company,  to  any  employees  who  have  labored  for  said  company  under  him, 
-with  interest  thereon  from  the  date  of  said  payments  at  the  rate  of  two  percent, 
per  month,  payable  in  gold  coin  of  the  United  States. 

"  Sacremento  City,  January  loth,  1864. 

"  Lew  B.  Harris, 

M.    H.   TURRILL." 

Plaintiff  claimed  as  the  assignee  of  Waugenheim  &  Blum.  The  de- 
fendants appealed.     The  other  facts  aresuflSciently  stated  in  the  opinion. 

//.  H.  Hartley,  for  appellants. 

Coffroth  V.  Spaulding,  for  respondent.^ 

Shafter,  J. — The  plaintiff  sues  as  assignee  of  Waugenheim  &  Blum. 
The  assignment  is  denied  b)^  the  defendants  in  their  answ^er.  Waugen- 
heim &  Blutn  intervened,  alleging  that  they  were  and  ever  had  been  the 
owners  of  three-fourths  of  the  claim  in  suit,  and  pra^dng  judgment  for 
the  amount.  The  case  was  tried  by  the  court  and  judgment  was  entered 
for  the  plaintiff  and  intervenors  to  recover  of  the  defendants  the  whole 
claim  as  an  entirety;  and  it  was  further  ordered  and  adjudged  that  the 
plaintiff  was  entitled  to  one-fourth  of  the  amount  and  the  intervenors  to 
the  other  three-fourths. 

First. — The  evidence  of  the  plaintiff  to  prove  that  the  entire  claim 
was  assigned  to  him,  was  an  indorsement  in  blank  by  W^augenheim  & 
Blum  of  a  document  signed  by  the  defendants,  in  which  the  amount 
due  on  the  contract  in  suit  was  stated  at  $3,736.46. 

Though  it  was  in  fact  understood  by  the  parties  that  the  beneficial 
interest  to  pass  by  the  assignment  was  limited  to  one-fourth  of  the 
claim,  still  the  plaintiff",  as  holder  of  the  legal  title,  could  sue  for  and 
recover  the  whole  amount.  It  was  competent,  however,  for  the  assign- 
ors to  assert  their  equitable  right  by  intervening  in  the  action.  Had 
they  not  interv^ened  th^y  would  have  been  bound  by  the  direct  and 

1  The  arguments  are  omitted. 


482  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

legal  operation  of  the   judg-ment.     Horn  v.    The  Volcano  Water  Com- 
pany, 13  Cal.  62.1 


EATON  V.  ALGER. 

Supreme  Court  op    New  York,  St.  Lawrence    General   Term, 
October,  6,   1868. 

[57  Barb.  179.] 

Appeal  from  a  judgment  entered  upon  a  verdict  of  a  jur5^ 

The  action  was  brought  in  1858,  b}^  Josiah  Eaton,  then  in  life,  against 
the  defendant  John  P.  Alger,  and  Wilks  S.  Alger,  since  deceased,  on 
a  promissory  note,  purporting  to  be  made  by  the  defendant  John  P. 
Alger  to  Ira  M.  Clark,  and    indorsed  by  Wilks  S.  Alger,  for  $629.75. 

The  defendants  answered  separately,  and  set  up  the  same  defences, 
namely  :  First,  that  the  note  was  void  for  usury  taken  by  the  payee, 
Clark  ;  and,  secondly,  that  the  plaintiff  was  not  the  real  party  in  inter- 
est, but  that  the  note,  at  the  time  of  the  commencement  of  the  action, 
belonged  to  and  was  the  property  of  Ira  M.  Clark,  the  payee  in  said 
note,  who  was  the  real  partj^  in  interest  in  the  action. 

The  action  was  tried  at  the  Saratoga  circuit,  in  May,  i860,  before 
Justice  James  and  a  jury,  where  the  plaintiff  was  nonsuited  on  both  of 
the  grounds  set  up  in  the  answer  in  defence,  and  judgment  was  entered 
up  for  the  defendants,  on  the  verdict.  On  appeal,  this  was  affirmed  by 
the  General  Term,  but  subsequently,  on  appeal,  was  reversed  by  the 
Court  of  Appeals,  and  a  new  trial  granted. 

Pending  the  appeal  in  the  Court  of  Appeals,  the  original  plaintiff, 
Josiah  Eaton,  died,  and  the  present  plaintiffs,  his  administrators,  were 
duly  substituted  in  his  place  and  stead  ;  and  the  defendant  Wilks  S. 
Alger  having  died,  his  executors,  J.  P.  Butler  and  Elihu  Wing,  were 
duly  substituted  defendants  in  his  place  and  stead. 

1  The  judgment  was,  however,  reversed  upon  a  point  of  evidence,  and  a  new  trial  ordered. 

On  the  right  of  the  beneficial  owner  to  intervene,  see  also  Osborn  v.  McClelland  (1885),  43 
O.  S.  2S4:  "  Sec  ions  3171  and  3172  of  the  Revised  Statutes,  which  define  what  instruments  are 
negotiable  and  provide  that  the  indorsee  or  holder  thereof  may  maintain  an  action  thereon  in 
his  own  name,  must,  in  determining  who  is  the  proper  party  plaintiff,  be  construed  in  connec- 
tion with  section  4993  of  the  Re\dsed  Statutes,  which  requires  actions  to  be  prosecuted  in  the 
nameof  the  real  party  in  interest,  except  as  provided  in  sections4994  and  4995.  .  .  Thisapplies 
as  well  to  negotiable  paper  as  to  choses  in  action,  unless  the  indorsee  or  holder  is  protected 
under  f  e  rules  of  commercial  law,  by  which,  if  he  be  such  indorsee  or  holder  before  due,  in 
good  faith,  and  for  vahiable  consideration,  he  takes  the  same  free  from  all  equities. 

"Therefore,  if  such  indorsee  or  holder,  who  is  not  thus  protected,  sues  to  recover  thereon, 
it  is  a  good  defence  for  the  maker  to  show  that  he  is  not  the  real  party  in  interest,  unless  he 
is  authorized  to  sue  under  sections  4994  or  4995. 

"  So  the  real  owner  may  intervene  and,  by  cross-petition,  obtain  the  relief  to  which  he  is 
entitled,  as  against  the  indorsee  or  holder  who  is  the  apparent  owner." — Per  Curiam. 

Compare  Eltlingcr  v.  Persian  Rug  and  Carpet  Co.  (1S94),  142  N.  Y.  1S9,  given  in  text,  infra, 
and  the  notes  thereto.— £rf. 


KATON  V.  ALGER.  483 

The  action  was  again  tried  at  the  Saratoga  circuit,  in  January,  1868, 
before  Justice  Rosekrans  and  a  jury. 

On  the  trial  the  plaintiffs  proved  the  making  and  indorsing  of  the 
note,  and  rested.  The  defendants  then  offered  to  show  that  the 
plaintiffs'  intestate,  Eaton,  "said  to  the  defendant  John  P.  Alger,  before 
this  suit  was  brought,  that  he  had  no  interest  in,  or  title  to,  the  note, 
but  was  the  mere  agent  of  Clark.  This  was  objected  to  as  irrelevant 
and  incompetent,  and  because  the  defendants  were  not  in  a  position  to 
question  the  title  of  the  plaintiffs  to  the  note.  The  objection  was  sus- 
tained, and  the  defendants  excepted. 

The  defendants  then  put  in  evidence  the  following  receipt : 

"  Rec'd.  of  Ira  M.  Clark  a  note  against  J..  P.  Alger,  indorsed  by  W.  S.  Alger,  for 
six  hundred  and  twenty-five  75  100  dollars,  which  I  agree  to  account  for  on 
demand.     Aug.  24th,  1858.  Josiah  Eaton." 

and  in  connection  therewith  again  offered  the  evidence  above  stated, 
which  was  again  objected  to  and  excluded,  and  the  defendants  excepted. 

The  defendants  then  offered  to  show  that  it  was  not  designed  by  the 
parties  that  the  title  to  the  note,  or  any  interest  therein,  should  vest  in 
Eaton  ;  that  he  only  took  it  as  agent.  This  was  objected  to,  the 
objection  sustained,  and  the  defendants  excepted.  The  defendants  next 
offered  to  show  that  Clark  claimed  to  own  the  note,  and  said  that 
Eaton  had  no  interest  in  it.  This  was  objected  to,  the  objection  sus- 
tained, and  the  defendants  excepted.  The  evidence  being  closed,  the 
defendants'  counsel  requested  the  court  to  charge  the  jury  that  the 
receipt  on  its  face,  unexplained,  showed  the  note  in  suit  to  be  the 
property  of  Clark,  and  that  Eaton  had  no  right  or  title  to  it,  at  the 
commencement  of  this  action.  The  court  refused  so  to  charge,  and  the 
defendants  excepted.  The  plaintiffs  had  a  verdict  for  the  amount  of 
the  note  and  interest,  upon  which  judgment  was  entered,  and  the  de- 
fendants appealed. 

A.  Pond,  for  the  appellants. 

E.  CoweJt,  for  the  respondents.^ 

By  the  Cotirt,  James,  J.  The  real  question  in  this  case  is,  whether 
the  defendant  should  have  been  allowed  to  prove  that  the  plaintiffs  were 
not  the  real  owners  of  the  note  in  suit. 

As  the  Code  stood  when  this  action  was  commenced,  every  action  was 
required  to  be  brought  in  the  name  of  the  real  party  in  interest,  except 
as  otherwise  provided.  Code  §111.  No  other  provision  covered  a  case 
like  this.  It  would  therefore  seem  very  clear,  that  a  defendant,  on  such 
an  issue  made  by  the  pleadings,  would  have  the  right  to  show  that  the 
plaintiff  was  not  the  real  party  in  interest,  particularly  if  he  had  pleaded 
a  defence  in  the  action  good  as  against  such  pretended  real  part5^  The 
plaintiffs,  however,  insist  that  notwithstanding  this  provision  of  the 
Code,  the  indorsee  of  a  note,  or  the  holder  of  a  note  payable  to  bearer 

1  The  arguments  are  omitted. 


484  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

or  indorsed  in  blank,  may  maintain  an  action  upon  it,  although  not  in 
fact  the  owner,  nor,  as  between  himself  and  the  owner,  entitled  to  the 
proceeds  when  collected.  That  such  was  the  rule  before  the  Code,  is 
conceded  ;  and  the  argument  is,  that  it  was  abolished  by  the  Code ; 
that  the  codifiers  and  legislature  so  intended.  In  their  report  to  the 
legislature  the  codifiers  said,  "The  rules  respecting  parties  in  the 
courts  of  law  diflfer  from  those  in  the  courts  of  equity  ;  the  blending  of 
the  jurisdiction  makes  it  necessar>^  to  revise  those  rules  to  some  extent ; 
in  doing  so  we  have  had  a  threefold  purpose  in  view  :  ist.  To  do 
away  with  the  artificial  distinctions  existing  in  the  courts  of  law,  and 
to  require  the  real  party  in  interest  to  appear  in  court  as  such  ;  2d.  To 
require  the  presence  of  such  parties  as  are  necessary  to  make  an  end  to 
the  controversy  ;  and  3d.  To  allow,  otherwise,  great  latitude  in  respect 
to  the  number  of  parties  who  may  be  brought  in.  .  .  .  The  true 
rule  undoubtedly  is  that  which  prevails  in  the  courts  of  equity,  that  he 
who  has  the  right  is  the  person  to  pursue  the  remedy.  We  have 
adopted  that  rule. ' '  This  section,  now  §111,  was  adopted  by  the  legis- 
lature precisely  as  submitted  by  the  codifiers,  showing  that  they  ap- 
proved the  reasons  given  by  the  codifiers  for  its  adoption.  It  is  therefore 
quite  immaterial  what  was  the  rule  previous  to  the  Code,  if  thereby  the 
legislature  intended  to,  and  did,  change  the  rule,  by  express  enact- 
ment. That  they  did  so  we  think  clear,  from  the  language  of  the  stat- 
ute and  the  reasons  for  its  adoption.  In  their  reasoning  the  codifiers 
allude  to  the  existing  rules  and  the  necessity  for  a  revision,  one  pur- 
pose of  the  proposed  change  being  to  require  tbe  real  person  in  interest 
to  appear  in  court  as  such,  followed  by  an  act  providing  that  "  every 
action  must  be  prosecuted  in  the  name  of  the  real  party  in  interest." 
This  reasoning,  and  this  enactment,  seem  too  plain  for  misconception. 
This  act  is  emphatic;  it  uses  the  Saxon  word  "  must,''  (a  verb  which 
has  not  yet  been  twisted  by  judicial  construction,  like  the  word  "may" 
and  "shall,"  into  meaning  something  else,)  to  place  beyond  doubt  or 
cavil  what  it  intended. 

The  courts  have  heretofore  held  that  an  action  could  not  be  main- 
tained unless  in  the  name  of  the  real  party  in  interest.  In  Killmore  v. 
Culver  [1857],  24  Barb.  656,  in  an  action  on  a  note,  it  was  held  "that 
the  plaintiflF,  who  held  the  note  merely  for  prosecution,  could  not  main- 
tain an  action,  because  not  the  real  party  in  interest."  In  Clark  v. 
Phillips  [i860],  21  How.  87,  the  court  said :  "  This  action  on  a  prom- 
issory note  can  not  be  sustained,  because  not  brought  by  the  real  party 
.in  interest."  And  in  Jayncs  v.  Chalmers  [1852],  2  Selden,  215,  it  was 
^said  that  "under  the  Code  of  Procedure,  if  it  appears  that  the  plaintiff 
is  not  the  real  party  in  interest,  it  is  a  bar  to  the  action,  and  no  further 
defence  is  necessary. " 

This  covers  the  entire  ground  of  this  case,  and  shows  clearly  that  the 
judge  at  circuit  erred  in  excluding  the  evidence  offered. 


EATON  V  .  ALGER.  485 

But  it  may  be  said  that  the  remark  in  James  v.  Chalmers  was  not 
necessary  to  a  decision  of  the  case.  If  this  is  conceded,  still,  as  the 
opinion  was  concurred  in  by  seven  of  the  eight  members  of  the  court, 
without  any  objection  to  the  above  remark,  it  illustrates  how  that  sec- 
tion of  the  Code  was  understood  by  the  bench. 

The  importance  of  the  rule  enacted  by  the  Code  is  illustrated  in  this 
case.  One  defence  set  up  is  usury.  It  was  charged  against  the  payee 
of  the  note,  the  alleged  real  party  in  interest.  It  was  sought  to  estab- 
lish this  defence  by  proof  of  his  admissions  and  declarations  ;  but  as  he 
was  not  a  party  to  the  action,  they  were  excluded  as  hearsay,  within 
the  rule  oi Paige  v.  Cagwin,  7  Hill,  361.  Had  the  action  been  in  Clark's 
name,  his  declarations  would  have  been  admissible  as  evidence  in  chief; 
and  if  the  real  party  in  interest,  he  should  not  be  permitted,  by  a  nomi- 
nal transfer,  to  defeat  the  other  party  in  the  use  of  his  own  admissions 
and  declarations. 

It  was  earnestly  insisted  that  this  question  had  been  expressly 
decided  in  City  Bank  of  New  Haven  v.  Perkins,  29  N.  Y.  554,  and  Brown 
V.  Penfield,  36  N.  Y.  473.  But  neither  case  is  in  point.  The  question 
in  each  was  whether  an  actual  transfer,  good  in  form,  and  for  a  valua- 
ble consideration,  could  be  impeached  by  the  defendant  showing  that 
the  transfer  was  not  good  as  against  the  other  party,  and  the  court  held 
that  "  nothing  short  of  mala  fides,  or  notice  thereof,  would  enable  an 
indorser  or  acceptor  of  negotiable  paper  to  defeat  an  action  brought 
upon  it  by  one  who  is  apparently  a  regular  indorsee  or  holder,  espec- 
ially when  there  is  no  defence  to  the  indebtedness  ;  that  as  to  anything 
beyond  the  bona  fides  of  the  holder,  the  defendant  who  owes  the  debt' 
has  no  interest ;  it  is  sufficient  if  the  plaintiff's  title  is  good  as  against 
the  defendant. " 

In  this  action  we  are  to  presume,  from  the  offer,  that  the  plaintiff  was 
not  a  regular  indorsee  or  holder;  that  he  held  the  note  apparently  as 
agent  for  the  payee,  against  whom  the  defendants  claimed  a  good 
defence.  In  this  view  the  defendants  were  interested  in  questioning 
the  plaintiff's  title,  and  had  the  right  to  be  heard  upon  that  point. 

The  question  is  not  whether  there  was  proof  showing  that  the  plaintiffs 
were  not  the  real  parties  in  interest,  but  whether  the  defendants  could 
give  evidence  to  prove  such  allegation.  If  the  defendants  could  make 
such  proof,  the  case  came  within  the  principle  of  the  two  cases  last 
above  cited;  it  would  impeach  the  bona  fides  of  the  plaintiff's  posses- 
sion, coupled  with  a  legal  defence  pleaded,  which  the  defendants  should 
have  an  opportunity  to  establish,  in  an  action  by  the  real  owner. 

But  upon  the  broader  ground,  if  the  plaintiffs  were  not  the  real 
parties  in  interest,  that  of  itself,  under  section  1 1 1  of  the  Code,  was  a 
bar  to  all  further  proceedings  in  the  action,  and  a  complete  defence  as 
against  the  plaintiffs.  The  law  of  this  state  no  longer  permits  actions 
to  be  prosecuted  in  the  name  of  nominal  plaintiffs;  the  moment  that 
fact  appears  the  action  is  ended,  no  matter  what  the  character  of  the 


486  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

instrument  on  which  it  is  founded;  whether  negotiable  or  not;  or 
whether  the  defendant  has,  or  has  not,  any  defence  to  the  indebtedness. 
For  these  reasons  the  learned  judge  erred  in  not  allowing  the  defend- 
ants to  make  the  proof  offered,  and  a  new  trial  should  be  granted;  costs 
to  abide  the  event. 


ALLEN  7J.  BROWN. 

Commission  of  Appeals,  New  York,  December  29,  1870. 

[44  N.   Y.  228.] 

Appeal  from  an  order  of  the  Supreme  Court  at  General  Term,  affirm- 
ing a  judgment  in  favor  of  the  plaintiff,  entered  upon  the  report  of  a 
referee. 

In  the  spring  of  1858,  Constant  Cook,  Jotham  Clark,  Trumbull 
Care^^  and  the  defendant  owned  certain  claims  against  the  Madison  and 
Indianapolis  Railroad  Company.  The  defendant  was  about  to  go  west 
that  spring  to  settle  his  own  share  of  the  claim,  and  applied  to  Cook, 
Carey,  and  Clark  to  take  charge  of  the  settlement  of  their  interests  in 
the  same  matter,  and  received  from  each  of  them  power  to  do  so.  Each 
of  the  parties  was  to  pay  one-fourth  of  the  expenses.  The  defendant 
went  west,  made  a  settlement  with  the  railroad  company,  and  received 
in  full  for  the  claims  thirty-six  income  bonds  of  $1,000  each,  made  by 
the  company;  also  three  notes,  made  by  the  company,  dated  October  i, 
1859,  one  for  $491.61,  payable  eighteen  months  after  date,  one  for 
$1,404.60,  pa3-able  two  years  after  date,  and  the  other  for  $1,404.60,  pay- 
able three  years  after  date,  and  all  payable  at  the  cffice  of  Winslow, 
Lanier  &  Co.,  in  New  York.  The  notes  were  good  security,  as  found 
by  the  referee,  and  were  all  prid  at  maturity.  After  the  notes  were 
paid,  the  parties  interested  in  them  applied  to  the  defendant  for  their 
several  shares  of  the  avails,  and  he  denied  that  he  had  received  any- 
thing on  the  notes,  alleging  that  they  were  worthless.  They  then 
severally  asked  the  defendant  to  give  up  the  bonds  he  had  received 
from  them.  This  he  refused  to  do  unless  they  would  first  pay  a  claim 
he  made  for  his  services  and  expenses.  Defendant  did  afterw^ard  sur- 
render to  each  of  the  parties  one- fourth  of  the  bonds  he  received  on  the 
settlement,  less  the  coupons,  which  he  had  detached  for  collection.  On 
the  13th  May,  1863,  Cook,  Carej',  and  Clark  assigned  all  their  interest 
in  the  demand  to  the  plaintiff,  and  this  action  was  commenced  on  8th 
June,  1863. 

The  only  controversy  in  the  case  is  as  to  the  notes  or  the  avails  of 
them.  On  the  trial  the  defendant  claimed  that  he  had  sold  the  notes 
referred  to  for  less  than  the  face  of  them.  The  referee  reported  in  favor 
of  plaintiff  for  $2,006.64,  on  which  judgment  was  entered  with  costs. 


ALLEN  :'.  BROWN.  487 

The  defendant  appealed  to  the  General  Term  of  the  seventh  district, 
where  the  judgment  was  affirmed,  and  he  appeals  to  this  court. 

The  complaint  set  forth  the  defendant's  agency  and  the  receipt  of 
bonds  and  notes  by  him,  as  above,  and  alleged,  among  other  things, 
that  he  had  collected  and  received  the  whole  amount  of  the  notes,  with 
interest,  and  refused  to  pay  over  or  account  to  the  assignors  of  the 
plaintiff  for  the  same.  It  contained  several  other  counts  as  for  money 
had  and  received.  No  consideration  was  in  fact  paid  by  the  plaintiff 
upon  the  assignment  to  him. 

Jolui  C.  Strong,  for  the  appellant. 

£>.  Rumsey,  for  the  respondent.' 

Hunt,  C. — The  appellant  insisted  that  the  assignment  from  Cook, 
Clark,  and  Carey  to  the  plaintiff,  conveyed  no  title  upon  which  this  suit 
could  be  brought.  This  point  is  based  upon  the  evidence  given  by  Mr. 
Cook,  when  he  testifies  "Allen  paid  me  nothing,  and  I  agreed  with  him 
that  I  would  take  care  of  the  case,  and  if  he  got  beat  it  should  not 
trouble  or  cost  him  anything.  " 

I  am  of  the  opinion,  that  the  assignment  is  sufficient  to  sustain  this 
action.  The  Code  abolishes  the  distinction  between  actions  at  law  and 
suits  in  equity,  and  between  the  forms  of  such  actions.  Section  69.  It 
is  also  provided,  in  section  iii,  that  every  action  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  except  as  otherwise  provided  in 
section  113.  The  latter  section  provides  that  an  executor,  administrator, 
trustee  of  an  express  trust,  may  sue  in  his  own  name.  These  provisions 
are  intended  to  abolish  the  common  law  rule,  which  prohibited  an  action 
at  law  otherwise  than  in  the  name  of  the  original  obligee  or  covenantee, 
although  he  had  transferred  all  his  interest  in  the  bond  or  covenant  to 
another.  It  accomplishes  fully  that  object,  although  others  than  the 
assignee  may  have  an  ultimate  beneficial  interest  in  the  recovery.  In 
a  case  like  the  present,  the  whole  title  passes  to  the  assignee,  and  he  is 
legally  the  real  party  in  interest,  although  others  may  have  a  claim 
upon  him  for  a  portion  of  the  proceeds.  The  specific  claim,  and  all  of 
it,  belongs  to  him.  Even  if  he  be  liable  to  another  as  a  debtor  upon 
his  contract  for  the  collection  he  may  thus  make,  it  does  not  alter  the 
case.     The  title  to  the  specific  claim  is  his.- 

Judgment  affirmed  with  costs. 

1  The  arguments  are  omitted. 

2  Citing,  Durgin  v.  Ireland  (1856),  14  N.  Y.  322;  Williams  v.  Brown  (1866),  2  Keyes,  486; 
Paddon  v.  Williams  (1863),  i  Rob.  340. 

Only  that  portion  of  the  opinion  which  considers  the  question  in  hand  is  given. 

See  also,  Cottle  v.  Cole  (1866),  20  Iowa,  481,  485:  "The  course  of  decision  in  this  state  estab- 
lishes this  rule,  \iz:  that  the  party  holdina^  the  legal  title  of  a  note  or  instrument  may  sue  on 
it  though  he  be  an  agent  or  trustee,  and  liable  to  account  to  another  for  the  proceeds  of  the 
recovery,  but  he  i  open  in  such  case,  to  any  defence  which  exists  against  the  party  benefi- 
cially interested.  {Farwellv.  Tyler,  5  Iowa,  535;  Fear  v.  Jones,  6  Id.  169;  Sheldon  v.  Middle- 
ion,  10  Id.  47.)  Or  under  the  Revision,  the  party  beneficially  interested,  though  he  may  not 
have  the  legal  title,  may  sue  in  his  own  name.  (Coyningham  v.  Smith,  16  Iowa,  471)" — per 
Dillon,  J. 


488  IN  WHOSE  name;  the  action  should  be  brought. 

EATON  v.  AI.GER. 

Court  of  Appeals  of  New  York,  January  30,    1872. 

[47  ^.  r.  345-] 

Action  on  a  promissory  note  made  by  defendant  John  P.  Alger  to  Ira 
M.  Clark,  and  indorsed  by  Wilks  S.  Alger,  since  deceased,  for  the  snm 
of  $629.76. 

A.  Pond,  for  appellants. 

£.  Cowen,  for  respondents.' 

Peckham,  J. — It  is  urged  that  oral  evidence  was  not  admissible  to 
vary  or  add  to  the  receipt  or  writing  given  by  the  plaintiff  when  the 
note  in  suit  was  delivered  to  him.  That  question  was  distinctly  decided 
by  this  court  when  the  case  was  here  before.^  It  was  necessarily  decided, 
and  after  full  examination  upon  the  merits.  Whether  right  or  wrong, 
it  is  the  law  of  this  case. 

I  do  not  think  the  court  erred  in  refusing  to  non-suit.  The  evidence 
established  sufficient  title  in  the  plaintiff  in  the  note  to  enable  him  to 
maintain  this  action. 

This  receipt  did  not  transfer  the  title.  That  was,  prima  facie,  done  by 
the  delivery  of  the  note  to  plaintiff;  the  note  being  paj-able  to  bearer. 
That  position  was  not  changed  or  varied  by  the  evidence  of  the  terms 
upon  which  he  held  it. 

The  evidence  substantially  established  that  the  payee  of  the  note 
(Clark)  delivered  it  to  the  plaintiff  upon  his  undertaking  to  collect  it  at 
his  own  expense  and  to  pay  to  Clark  upon  its  collection  $600,  which 
was  the  original  amount  of  the  note  prior  to  its  renewal. 

Here,  it  will  be  noted,  is  no  agreement  to  pay  to  Clark  any  part  01 
the  proceeds  of  this  note,  but  simply  to  pay  to  him  so  much  money  upon 
the  happening  of  an  event  which  the  plaintiff  agreed  to  accomplish. 

The  note  is  transferred  and  delivered  to  the  plaintiff  under  that  con- 
tract; and  in  fulfillment  of  that  contract,  he  proceeds  to  its  collection. 
The  plaintiff  is  thus  made  the  partj'  in  interest,  within  the  meaning  of 
the  Code,  so  as  to  enable  him  to  maintain  this  action.  Ctinmiings  v. 
Morris,  25  N.  Y.  625. 

This  is  not  like  Lang-don  v.  Langdon,  4  Gray,  186.  There  the  note  was 
not  negotiable,  and  no  transfer  of  the  title  in  the  writing.  Here  the 
delivery  transferred  the  title,  if  so  intended  between  the  parties. 

Had  the  plaintiff  paid  to  Clark  $100  on  the  delivery,  and  promised  to 
pay  $500  more  upon  the  collection  of  the  note,  which  he  undertook  to 
accomplish,  it  would  not  be  denied  that  he  was  the  party  in  interest. 
Does  it  make  any  legal  difference  that  he  agreed  to  pay  the  whole  con- 
sideration money  when  the  note  should  be  collected  ? 

1  The  arguments  are  omitted;  the  statement  of  facts  ha-;  been  abridged. 

2  Eaton  V.  Alger  (1865),  2  K=yes,  41. 


CDRTISS  V.  SPRAGUE  AND  II USE.  489 

Again,  suppose  he  had  agreed  with  plaintiff  that  he  should  have  the 
whole  note  if  he  would  proceed  to  collect  it  at  his  own  expense  and 
risk,  and  had  delivered  the  note  under  that  arrangement ;  confessedly, 
the  plaintift  would  then  be  the  party  in  interest.  Does  not  the  like 
consequence  follow,  though  the  plaintiff  should  agree  to  pay  a  certain 
sum  which  was  less  than  the  face  of  the  note  upon  its  collection  ?  Is 
he  not  then  the  part^'  in  interest  in  the  suit  ? 

He  is  sufficiently  the  party  in  interest  in  this  case,  though  he  has  an 
interest  in  but  a  part  of  the  note,  and  though  Clark  be  the  party  in 
interest  in  the  remaining  portion  ;  as  no  such  objection  is  taken  as  that 
Clark  is  a  necessary  party. 

If  the  evidence  showed  that  Eaton,  the  plaintiff,  had  a  mere  power, 
it  was  a  power  coupled  with  an  interest  in  the  note  ;  and,  hence,  he 
was  a  party  in  interest  in  the  note. 

This,  it  must  be  conceded,  is  a  close  case,  and  not  free  from  doubt. 
It  is  on  the  border  line.  The  objection  now  is  purely  technical,  as  the 
merits  have  been  fully  tried,  and  no  other  question  remains  in  the  case 
except  as  to  the  title  to  the  note.  No  complaint  is  made  of  the  admis- 
sion or  rejection  of  evidence,  or  of  any  ruling,  except  in  regard  to  this 
question. 

There  are  decisions  fully  warranting  this  action,  irrespective  of  the 
plaintiff's  interest,  if  he  sue  with  the  assent  of  the  owner  of  the  note. 
But  we  do  not  put  this  decision  upon  that  ground.  It  is  well  settled 
that  the  plaintiff,  to  maintain  this  action,  since  the  Code,  must  be  the 
party  in  interest,  in  the  same  manner  he  is  required  to  be  in  any  other 
contract,  whether  negotiable  or  not.^ 

Judginent  affirnied. 


CURTISS  V.  SPRAGUE  AND  HUSE. 

Supreme  Court  op  California,  January,   1876. 

[51   Cal.  239.] 

On  January  19,  1865,  the  defendant,  Thomas  Sprague,  made,  exe- 
uted,  and  delivered  his  promissory  note  to  the  plaintiff,  Dennis,  in  the 
words  and  figures  following,  to- wit : 

$2400.  January  19,  1865. 

On  the  ist  of  November,  proximo,  I  promise  to  pay  to  Thomas  Dennis,  or 
order,  two  thousand  four  hundred  dollars,  for  value  received,  in  United  States 
gold  coin,  with  interest  at  the  rate  of  one  and  one-half  per  cent,  per  month. 

Thomas  Sprague. 

At  the  time  of  the  making  and  delivery  of  the  note,  the  defendant  Huse 
guaranteed  its  payment  by  indorsing  the  same.     When  the  note  fell  due, 

1  Part  of  the  opinion,  dealing  with  another  point,  is  omitted. 


490  IN  WHOSE  NAME  THIv  ACTION  SHOULD  BE  EROLGHT. 

Dennis  failed  to  make  demand  of  payment  ana  give  notice  of  non-paj-- 
ment.  Afterwards,  and  about  the  month  of  September,  iS66,  Huse 
made  a  payment  on  the  note,  and  said  to  the  payee  :  "Mr.  Dennis,  I 
am  responsible  for  that  note."  Dennis  after  this  indorsed  the  note  in 
blank,  and  delivered  it  toF.  Maguire.  Subsequently,  Maguire  assigned 
the  note  to  Dennis  b}-  indorsement,  without  recourse,  and  redelivered 
the  same  to  him.  Afterwards,  Dennis  delivered  the  note  to  the  plain- 
tiff Curtiss,  without  receiving  any  value,  but  with  an  agreement  that 
Curtiss  should  bring  suit  and  divide  with  him  what  he  recovered. 
The  plaintiff  recovered  judgment,  and  the  defendants  appealed. 

Chas.  E.  Huse,  for  the  appellants. 

Albert  Packard,  for  the  respondent. 

By  the  Court  :- — 2.  There  was  no  error  in  the  refusal  of  the  court 
below  to  nonsuit  the  plaintiff  on  the  motion  of  the  defendants.  When 
the  note  was  delivered  to  Curtiss,  it  had  on  the  back  the  blank  indorse- 
ment of  Dennis,  the  payee  ;  and  "the  first  effect  of  an  indorsement  in 
blank,  is  to  make  the  paper  payable,  not  to  the  transferee  as  indorsee, 
but  as  bearer.  "  2  Parsons  on  Notes  and  Bills,  19.  Curtiss,  therefore, 
acquired  the  legal  title  to  the  note,  with  a  correspondingright  of  action, 
when  it  was  delivered  to  him  by  the  payee,  indorsed  in  blank.  We 
attribute  no  importance  to  the  fact  that  the  note  had  before  been  deliv- 
ered b}^  Dennis  with  the  blank  indorsement  to  Maguire,  and  that  the 
latter  had  redelivered  it  to  Dennis,  with  a  special  assignment.  The 
title  would  have  been  as  effectually  reinvested  in  Dennis  b}^  mere  deliv- 
er}', without  the  assignment,  as  with  it ;  and  when  Dennis  afterwards 
delivered  the  note  to  Curtiss,  there  was  no  need  that  he  should  again 
indorse  it  in  blank,  in  order  to  convey  the  legal  title,  as  the  blank 
indorsement  alreadj'  on  it  was  effectual  for  that  purpose. 

3.  The  legal  title  and  right  of  action  being  wholly  in  Curtiss,  the 
court  erred  in  permitting  Dennis  to  be  joined  as  a  co-plaintiff.  But  it 
was  an  error  which  has  wrought  no  substantial  injury  to  the  defend- 
ants. Nevertheless,  in  order  to  preserve  a  proper  consistency  in  the 
record,  we  deem  it  better  to  remand  the  cause  for  further  proceedings. 

It  is  therefore  ordered  that  the  judgment  be  reversed  and  the  cause 
remanded,  with  an  order  to  the  court  below  to  vacate  the  order  allowing 
Dennis  to  be  joined  as  a  co-plaintiff,  and  to  enter  a  judgment  on  the 
findings  in  favor  of  the  plaintiff  Curtiss. 

1  A  part  of  the  opinion,  discussing  the  guarantor's  promise  to  pay,  is  omitted. 


SHKKIDAN  V.  THK  MAYOR,  &C.  OF  NEW  YORK.  491 

SHERIDAN  V.   THE  MAYOR  &c.  OF  NEW  YORK. 

Court  of  Appeai^s  of  New  York,  December  22,  1876. 

[68  N.    V.  30.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of  the 
defendant,  entered  upon  a  verdict,  (Reported  below,  8  Hun.  424.) 

This  action  was  brought  originally  by  Morgan  Jones  upon  an  account 
for  work  done  for,  and  materials  furnished  to  the  defendant ;  pending 
the  action  the  claim  was  assigned  by  him  to  plaintifi",  who  was  substi- 
tuted as  plaintiff. 

The  facts  sufficiently  appear  in  the  opinion. 

Charles  P.  Shaw,  for  the  appellant. 

D.  J.  Dean,  for  the  respondent.' 

Church,  Ch.  J. — The  onl}'  question  submitted  to  the  jury  was 
whether  the  plaintiff  was  the  real  party  in  interest.  A  written  assign- 
ment, properly  executed  and  acknowledged  before  a  proper  officer,  was 
produced  in  terms  transferring  absolutely  for  a  valuable  consideration 
the  demand  in  suit  from  Morgan  Jones  to  the  plaintiff,  and  proof  was 
made  of  the  delivery  thereof  by  the  former  to  the  latter.  As  to  these 
facts  there  was  no  dispute,  nor  could  there  be  any  dispute  that  the 
plaintiff"  held  the  legal  title  to  the  demand.  The  learned  judge  submit- 
ted the  question  to  the  jury  in  this  language  :  "If  you  believe  from 
the  evidence  that  the  real  party  in  interest  in  this  suit  is  Morgan  Jones 
and  that  this  is  a  sham  transaction,  then  I  think  the  plaintiff"  should  be 
defeated  in  the  action.  " 

Precisely  what  the  learned  judge  meant  by  a  sham  transaction, as  ap- 
plied to  the  transfer  of  the  demand,  is  not  very  apparent,  but  I  infer  from 
this  and  other  parts  of  the  charge  that  he  intended  to  charge,  that 
although  a  legal  title  to  the  claim  was  transferred  to  the  plaintiff  and 
the  assignment  was  valid  as  against  the  assignor,  yet  if  the  jury 
believed  that  the  transaction  was  colorable,  that  is,  that  by  anj^  private 
or  implied  understanding  the  transfer  was  not  intended  as  bonajide, 
or  an  actual  and  real  sale  of  the  demand  as  between  the  parties,  the 
plaintiff  could  not  recover.  In  this,  with  great  respect,  I  think  the 
learned  judge  erred.  A  plaintiff"  is  the  real  party  in  interest  under  the 
code,  if  he  has  a  valid  transfer  as  against  the  assignor,  and  holds  the 
legal  title  to  the  demand.  The  defendant  has  no  legal  interest  to  inquire 
further.  A  payment  to,  or  a  recovery  by,  an  assignee  occupying  this 
position,  is  a  protection  to  the  defendant  against  any  claim  that  can  be 
made  by  the  assignor.  In  this  case,  from  the  undisputed  facts,  the 
defendant  would  be  protected  if  it  paid  to  the  assignee  or  if  a  recovery 

1  The  argil  merits  are  omitted. 


492  IN  WHOSE  NAME  THE  ACTION  SHOLXD  BE  BROUGHT. 

was  had  against  it  by  him.  No  question  was  made  and  none  submitted 
to  the  jury  as  to  the  execution  or  delivery  of  the  assignment,  and  con- 
ceding that  the  circumstances  were  such  as  to  justify  the  jurj-  in  lind- 
ing  that  it  was  colorable  as  between  the  parties,  yet  that  would  consti- 
tute no  defence  on  the  ground  that  the  plaintiff  was  not  the  real  party 
in  interest.  Such  an  inquiry  might  become  material  if  the  rights  of 
creditors  were  involved,  or  upon  the  right  of  interposing  some  defence 
or  counter-claim  against  the  assignor. 

Nor  is  it  of  any  monent  that  no  consideration  was  paid  for  the 
demand  by  the  assignee.  The  assignor  could  give  the  demand  to 
the  plaintiff,  or  sell  it  to  him  for  an  inadequate  consideration,  or 
without  any  consideration.  It  is  enough  if  the  plaintiff"  has  the 
legal  title  to  the  demand,  and  the  defendant  would  be  protected  in  a 
payment  or  recovery  by  the  assignee.  It  is  not  a  case  of  mala  fide 
possession  which  the  defendant  can  avail  itself  of,  as  if  a  thief  should 
bring  an  action  upon  a  promissory  note  which  he  had  stolen.  These 
views  are  well  settled  by  authorit3\ 

As  before  remarked,  there  was  no  question  as  to  the  making  and 
deliver^'  of  the  assignment,  and  the  remarks  of  the  learned  judges  at 
General  Term,  therefore,  as  to  when  and  under  what  circumstances  a 
jury  is  or  is  not  justified  in  finding  contrary  to  the  evidence  of  one  or 
more  witnesses,  has  no  application  to  the  question  involved  in  this 
case,  viz.  :  the  bona  fides  as  between  assignor  and  assignee  of  the  trans- 

1  Referring  to  Allen  v.  Brown  (1870),  44  N.  Y.  22S,  231;  Stone  v.  Frost  (1S74),  61  N.  Y.  614; 
Richardson  v.  Mead  (1S58),  27  Barb.  178;  Merrick  -■.  Drainard  (1S60),  38  Barb.  574,  579  ["  The 
assignor  having  a  right  of  action,  it  was  assignable:  Hall  v.  Robinson,  2  Comst.  293.  The 
defendants  have  nothing  to  do  with  the  question  of  consideration.  The  assignment  is,  on 
its  face,  valid,  and  whether  it  was  transferred  for  value  or  was  a  gift  to  the  defendants  [5zc], 
is  wholly  immaterial."— P^j-  Mdllin,  J.];  City  Bank  of  Ne-u  Haven  v.  Perkins  (1864),  29  N. 
Y.  554;  Cage  V.  Kendall  (1836),  15  Wend.  640. 

See  further,  Peck  v.  Vorks  (1878),  75  N.  Y.  421,  424:  "A  creditor  who  holds  securities  as  col- 
lateral may  always  enforce  them,  for  his  own  benefit,  by  an  action;  and  it  does  not  rest 
with  the  defendant  therein  to  question  whether  the  transfer  was  merely  colorable,  or 
whether  any  consideration  was  paid  for  the  same."— P-f?  Miller.  J. 

Accord  also  (on  the  ground  that  if  there  is  a  valid  transfer  to  plaintiff,  the  defendant  has 
no  concern  with  the  consideration):  Francisco  v.  Smith  (1893),  67  Hun,  225  [assignment  of  a 
covenant  entered  into  by  the  vendor  of  a  business  that  he  would  not  engage  in  the  same 
business  in  the  same  village].  Affirmed,  143  N.  Y.  488.  Bedford  v.  Sherman  (1893),  68  Hun, 
317  [assignment  of  a  claim,  on  notes  of  a  corporation,  against  its  directors,  as  being  individ- 
ually liable].  Coslello  v.  Herbst  (1S96),  iS  Misc.  176,  180:  "The  assignment  of  the  claim  from 
Hadden  to  Brown  and  from  the  latter  to  the  plaintiff,  were  in  writing,  and  it  was  not  objected 
thatthej'  were  insufficient  in  form  to  pass  title  to  plaintiff.  The  effort  of  the  defendant  to 
get  at  the  amount  of  the  consideration  was  without  merit,  because  of  the  immateriality  of 
the  inquiry."— P^r  McAdam,  J.  Toplilz  v.  King  Bridge  Co.  (1897),  20  Misc.  576,  578:  "Even 
if  no  consideration  had  been  paid  by  the  assignee,  the  defendant  would  be  protected  by 
making  payment  to  him,  and,  therefore,  can  not  object  to  his  title." — Per  Daly,  P.  J.  Lin- 
den V.  Brustein  (1898),  23  Misc.  655,  656:  "There  seems  to  be  no  doubt  that  the  a.ssisinment 
was  valid  as  against  the  assignor;  and  the  defendant  has  no  legal  interest  to  inquire  whether 
the  transfer  w^as  an  actual  sale  or  only  colorable,  or  whether  there  was  any  consideration 
paid  therefor,  or  what  was  the  arrangement  or  understanding  between  the  parties  respect- 
ing the  ultimate  disposition  of  the  proceeds  of  the  recovery." — Per  Gildersleeve,  J. 

See  further,  for  decisions  in  other  states,  the  note  to  Willison  v.  Smith  ( 1S92),  52  Mo.  App. 
133,  irtfra. 


IIAVS  :■.   HATHORN.  493 

fer.  Suppose  after  the  trial  of  this  action  the  assignor  had  commenced 
an  action.  The  defendant  by  proving  the  making  and  delivery  of  the 
assignment  to  the  plaintiff,  could  have  defeated  the  action  on  the 
ground  that  he  was  not  the  party  in  interest,  and  I  apprehend  he  would 
not  have  been  permitted  to  show  that  the  transfer  was  not  as  between 
them  an  actual  bona  fide  sale,  and  the  result  might  be  that,  although 
the  defendant  justly  owed  the  debt,  it  would  avoid  liability  because  no 
one  had  a  right  to  prosecute.    The  code  never  anticipated  such  a  result. 

The  remaining  question  is  whether  there  was  a  sufficient  exception. 
The  plaintiflf's  counsel  requested  the  court  to  direct  a  verdict  for  the 
plaintifif,  which  was  refused,  and  an  exception  taken.  The  learned 
judge  in  effect  acquiesced  in  the  request,  except  as  to  the  right  of  the 
plaintiff  to  maintain  the  action.  He  stated  to  the  jury  ' '  that  the  only 
real  issue  which  appears  to  be  raised  by  the  pleadings  and  the  proof  is 
whether  this  plaintiff  is  the  real  party  in  interest. ' '  And  assuming,  as 
we  must  for  the  purposes  of  that  question,  that  the  court  was  right  on 
the  general  merits,  the  exception  to  the  refusal  to  direct  a  verdict  pre- 
sented this  point  only,  and  was  sufficient.  Under  the  charge  as  made, 
the  exception,  although  not  quite  orderly  in  form,  was  pointed  only  to 
the  right  of  the  plaintiff  to  maintain  the  action.  We  do  not  intend  to 
express  any  opinion  upon  the  merits  of  the  case,  or  upon  any  question 
relating  to  the  merits.  There  may  be  a  good  defence  to  the  action, 
but  from  the  facts  appearing  on  this  trial,  a  defence  can  not  be  sus- 
tained on  the  ground  that  the  plaintifif  is  not  the  real  party  in  interest. 

The  judgment  must  be  reversed  and  a  new  trial  ordered,  costs  to 

abide  the  event. 

All  concur.  Judgment  reversed. 


HAYS  V.  HATHORN  ET  AL. 

Court  of  Appeals  of  New  York,  October,  i,  1878. 

[74  A^.   Y.  486.] 

Appeal  from  judgment  of  the  General  Tarm  of  the  Supreme  Court, 
affirming  a  judgment  in  favor  of  plaintifif,  entered  upon  a  decision  of 
the  court  on  trial  without  a  jury.     (Reported  below,  10  Hun,  511.) 

This  action  was  upon  a  promissory  note,  alleged  in  the  complaint  to 
have  been  made  ty  the  firm  of  Hathorn  &  Southgate,  payable  to  the 
order  of  defendant  Frank  H.  Hathorn,  and  by  him  indorsed  and  trans- 
ferred to  plaintiff. 

The  facts  appear  sufficiently  in  the  opinion. 

Charles  S.  Lester,  for  appellants. 

John  R.  Putnam,  for  respondent.^ 

1  The  arguments  are  omitted. 


494  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

Hand,  J. In  their  answer,  the  defendants  denied  that  the  note  on 

which  the  action  was  brought  was  ever  transferred  to  the  plaintiff  or 
that  he  was  the  legal  owner  or  holder  thereof.  They  further  denied 
that  the  plaintiff  v/as  the  real  party  in  interest ;  alleged  that  the  Sara- 
toga County  Bank  was  the  real  party  in  interest  and  owner  and  holder 
and  should  be  the  plaintiff  and  that  the  note  was  duly  transferred  to  it 
instead  of  to  the  plaintiff. 

Upon  the  trial,  the  plaintiff  having  produced  the  note,  which  was 
payable  to  the  order  of  F.  H.  Hathorn  and  indorsed  in  blank  by  him, 
rested.  The  defendants  then  offered  to  prove  that  the  note  ' '  was  not 
the  property  of  the  plaintiff,  that  the  same  was  never  transferred  to 
him,  that  he  was  not  the  real  party  in  interest;  that  the  note  was  the 
property  of  the  Savings  Bank,  who  is  the  real  party  in  interest. ' '  The 
evidence  was  objected  to  by  the  plaintiff  as  immaterial  and  was 
excluded.  This  ruling  I  think  was  erroneous  and  renders  necessary-  a 
reversal  of  the  judgment. 

Under  the  answer  and  this  offer,  the  defendants  unquestionably  pro- 
posed to  show  substantially  that  the  plaintiff  had  no  title,  legal  or 
equitable,  to  the  note  and  no  right  as  owner  to  its  possession.  This 
might  have  been  done  by  proving  that  he  was  the  mere  finder  or  the 
unlawful  possessor,  or  that  the  right  to  its  possession  and  ownership 
was  in  the  bank,  to  whom  they  were  liable  hereon,  or  in  some  other  way. 
This  they  had  a  right  to  show. 

It  may  be  that,  had  their  offer  been  admitted,  they  would  have  pro- 
duced in  fact  no  evidence  to  sustain  it  or  to  prevent  a  recovery,  but  in 
considering  the  validity  of  their  exception  to  the  exclusion,  we  must 
assume  that  the  evidence  would  have  fully  covered  the  propositions 
contained  in  the  offer.  And,  as  remarked  in  the  dissenting  opinion  in 
the  court  below,  "  unless  the  defendants  are  to  be  precluded  altogether 
from  giving  any  evidence  of  a  matter  confessedly  issuable,  I  do  not  see 
how  this  offer  could  be  rejected. " 

The  cases  relied  upon  as  justifying  the  exclusion  of  the  evidence  do 
not  go  that  length.  In  Oimmings  v.  Morris,  25  N.  Y.  625,  it  was  held 
that  the  maker  of  a  note  could  not  defeat  the  plaintiff,  not  a  payee,  by 
proof  that  the  consideration  of  the  transfer  to  him  was  contingent  upon 
his  collecting  the  note.  Such  plaintift  was  declared  to  be  the  real  party 
in  interest  on  the  express  ground  that  the  transfer  was  complete  and 
irrevocably  vested  in  him  the  title  to  the  note.  In  City  Bank  v.  Per- 
kins, 29  N.  Y.  554,  there  was  no  question  of  exclusion  of  evidence,  but 
all  the  circumstances  being  proved,  it  was  held  that  where  the  cashier 
of  a  bank  holding  commercial  paper,  pledged  it  "duly  indorsed  "  to 
the  plaintiff  as  security  for  a  loan  by  the  plaintiff  to  his  bank,  and  it 
had  been  actually  transmitted  under  his  direction  to  the  plaintiff  so 
indorsed,  it  was  no  defence  to  one  admitting  his  liability  upon  such 
paper'to  show  lack  of  authority  in  the  cashier  alone  to  contract  a  loan 
for  the  bank  ;  or  the  fraudulent  diversion  by  him  of  the  funds  received 


HAYS  V.  IIATHORN  ET  AL.  495 

from  the  plaintiff  on  such  loan.  Some  of  the  remarks  in  the  opinion  in 
that  case,  not  necessary  to  the  decision,  are  perhaps  too  broad  to  be  en- 
tirely approved,  but  it  is  fully  conceded  in  it  that  proof  that  the  plain- 
tiff had  no  right  whatever  to  the  possession  but  was  a  mere  finder  or 
had  obtained  it  by  some  "  positive  breach  of  law  "  would  be  a  defence. 

Brown  v.  Pe7ifield,  36  N.  Y.  473,  holds  merely  that  proof,  by  the  party 
liable  on  a  bill,  of  gross  inadequacy  of  the  consideration  for  the  trans- 
fer of  such  bill  to  the  plaintiff  does  not  impeach  the  validity  of  such 
transfer  as  to  the  party  so  liable. 

In  Allen  v.  Brown,  44  N.  Y.  228,  it  was  decided  that,  as  against  the 
plaintiff  holding  legal  title  to  the  claim  by  written  assignment  valid 
upon  its  face,  the  debtor  cannot  raise  the  question  as  to  the  considera- 
tion for  such  assignment  or  the  equities  between  the  assignor  and  the 
assignee. 

In  Eaton  v.  Alger,  47  N.  Y.  345,  the  note  being  payable  to  bearer  and 
produced  by  the  plaintiff  upon  the  trial,  it  was  proved  that  the  payee 
had  delivered  it  to  the  plaintiff  upon  his  undertaking  to  collect  it  at  his 
own  expense  and  pay  to  such  payee  upon  its  collection  a  certain  sum  of 
money.  This  was  held  to  show  sufiiciently  that  the  plaintiff  and  not 
the  payee  was  the  real  party  in  interest  under  the  Code. 

Sheridan  v.  The  Mayor,  68  N.  Y.  30,  reiterates  the  doctrine,  that,  as 
against  the  debtor,  the  plaintiff  holding  a  written  assignment  of  the 
claim  to  himself,  valid  on  its  face,  obtained  the  legal  title  and  was  the 
real  part}^  in  interest  notwithstanding  the  fact  that  the  assignment  was 
without  consideration  and  merely  colorable  as  between  him  and  the 
original  claimant.  Such  assignment  is  expressly  declared  to  protect 
the  debtor  paying  the  assignee  against  a  subsequent  suit  by  the  as- 
signor. 

In  Gage  v.  Kcnda.ll.  [1836]  15  Wend.  640,  the  fact  that  the  prosecu- 
tion of  the  note  was  by  its  owner  and  holder  in  the  name  of  the  plaintiff, 
a  stranger  to  it,  without  his  consent  or  knowledge,  was  sought  to  be 
set  up  as  a  defence,  but  it  was  ruled  out  on  the  ground  that  the  nomi- 
nal plaintiff  need  have  no  title  to  or  interest  in  the  paper  sued  upon. 
We  apprehend  the  Code  has  changed  this  and  that  such  facts  would 
now  be  fatal  to  an  action.  Such  a  plaintiff  could  not  in  any  view  be  the 
real  party  in  interest.  Indeed  he  would  not  even  have  manual  posses- 
sion of  the  paper. 

From  this  glance  at  the  cases,  it  appears  that  it  is  Ordinarily  no 
defence  to  the  party  sued  upon  commercial  paper,  to  show  that  the 
transfer  under  which  the  plaintiff  holds  it  is  without  consideration  or 
subject  to  equities  between  him  and  his  assignor,  or  colorable  and 
merely  for  the  purpose  of  collection,  or  to  secure  such  a  debt  contracted 
by  an  agent  without  sufficient  authorit3\  It  is  sufficient  to  make  the 
plaintiff  the  real  party  in  interest,  if  he  have  the  legal  title  either  by 
written  transfer  or  delivery,  whatever  may  be  the  equities  between  him 
and  his  assignor.     But  to  be  entitled  to  sue,  he  must  now  have  the 


496  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

right  of  possession  and  ordinarily  be  the  legal  owner.  Such  ownership 
must  be  as  equitable  trustee,  it  may  have  been  acquired  without 
adequate  consideration,  but  must  be  sufficient  to  protect  the  defendant 
upon  a  recovery  against  him  from  a  subsequent  action  by  the  assignor. 

As  we  understand  the  scope  of  the  offer  in  the  present  case,  it  went 
to  entirely  disprove  any  ownership  or  interest  whatever,  or  even  right  to 
possession  as  owner  in  the  plaintiff.  It  should  therefore  have  been 
admitted.  It  may  be  true  that  the  plaintiff,  if  this  note  had  been 
delivered  to  him  with  the  intent  to  transfer  title,  might  have  lawfully 
overwritten  the  blank  indorsement  with  a  transfer  to  himself;  it  is  also 
true  that  the  production  of  the  paper  bj^  him  was  prima  facie  evidence 
that  it  had  been  delivered  to  him  b3^  the  paj^ee  and  that  he  had  title  to 
it,  but  the  defendant's  offer  was  precisely  to  rebut  this  very  presump- 
tion, and  for  ought  that  we  can  know  the  evidence  under  it  would  have 
done  so. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered,  costs  to 
abide  the  event. 

All  concur,  except  Miller  and  Earl,  JJ.,  absent. 

Judgment  reversed. 


NICHOLS  V.  GROSS. 

Supreme  Court  of  Ohio,  December  Term,  1875. 

[26  O.  S.  425.] 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Auglaize  county. 

James  Murray,  for  the  motion. 

L.  C.  Sawyer,  contra. 

By  the  Court. — The  action  below  was  brought  by  Gross  against 
Nichols,  upon  a  promissory  note  made  payable  to  the  order  of  Vance, 
Bro.  &  Co.  In  his  petition.  Gross  alleged  that  the  note  was  "trans- 
ferred to  him  by  deliver^'  for  collection,"  and  that  he  was  "the  owner 
and  holder  of  said  note  for  said  purpose. "  The  note,  a  copy  of  which 
is  attached  to  the  petition,  contains  but  two  indorsements.  One  of 
these  is  a  blank  indorsement  b}^  the  payees,  and  the  other  an  indorse- 
ment by  the  Farmers'  Bank  of  Findley,  to  the  U.  S.  Express  Co.,  "  for 
collection."  The  only  question  presented  is,  whether  this  petition 
shows  such  a  right  in  Gross  as  enabled  him  to  bring  the  action  in  his 
own  name.  We  are  unanimous  in  the  opinion  that  it  does  not,  and  that 
in  holding  otherwise  the  courts  below  were  in  error.  The  note  was  pay- 
able to  order,  and  there  is  no  indorsement  of  it  to  Gross.  He,  therefore, 
had  neither  the  legal  nor  equitable  title  to  the  note. 

Judg7nents  reversed,  and  judgment  for  plaintiff  iti  error. ^ 

\  Accord:  Swift  v.  Elhiuorth  (1858),  10  Ind.  205;  Pixley  v.  Van  Nostern  (1884),   100  Ind.  34; 


WHITE,  BONNER  i^  WRIGHT  "'.  STANLEY.  497 


[29  OS.  423.1  a^^J^L^' 


WHITE.  BONNER  &  WRIGHT  r-.  STANLEY. 
Supreme  Court  of  Ohio,  December  Term,  1876. 


Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Hamilton  county. 

The  original  action  was  brought  in  the  Court  of  Common  Pleas  of 
Hamilton  County,  by  I.  H.  Stanley,  defendant  in  error,  against  White, 
Bonner  &  Wright,  plaintiffs  in  error,  as  makers,  and  against  Sparry, 
Hale  &  Co.,  as  indorsers,  of  a  promissory  note,  of  which  the  following 
is  a  copy  : 

$1,500.  Guyandotte,  W.  Va.,  November  20,  1873. 

"Eight  months  after  date,  we  promise  to  pay  to  the  order  of  Sparry,  Hale  & 
Co.,  fifteen  hundred  dollars,  at  Second  National  Bank,  Ironton,  O. 

"White,  Bonner  &  Wright." 

The  indorsement  thereon  was  as  follows  : 

"  Pay  I.  H.  Stanley. 

"  Sperry,  Hale  &  Co." 

The  indorsement  was  not  to  "I.  H.  Stanley,  Cashier,"  as  assumed  by 
counsel . 

The  makers  of  the  note,  in  their  answer  and  upon  the  trial,  sought  to 
impeach  the  plaintifi's  title  to  the  note,  and  to  establish  fraud  on  the 
part  of  Sperry,  Hale  &  Co.,  in  its  procurement.  On  the  trial  in  the 
common  pleas,  verdict  and  judgment  were  rendered  in  favor  of  the 
plaintiff;  the  judgment  was  affirmed  in  the  district  court.^ 

The  facts  of  the  case  may  be  thus  stated:  The  International  Bank  of 
Cuyahoga  Falls,  an  unincorporated  banking  company,  doing  business 
in  Summit  county.  Ohio,  of  which  the  plaintiff  was  cashier,  held  a  note 
on  Sperry,  Hale  &  Co.  for  $1,550,  bearing  date  August  30,  1873,  and 
payable  four  months  after  date.  For  the  purpose  of  paying  this  note, 
Sperry,  Hale  &  Co.,  on  the  17th  of  December,  1873,  indorsed  and  deliv- 
ered the  note  sued  on  to  plaintiff.  Upon  receiving  this  note,  with 
special  indorsement  thereon,  together  with  a  bill  of  exchange  for  the 
difference,  the  plaintiff,  as  cashier  of  the  bank,  canceled  and  delivered 
up  to  Sperry,  Hale  &  Co.  their  note  for  $1,550.  Afterward,  upon  the 
maturity  of  the  note  in  suit,  it  was  duly  protested  for  non-payment;  and 
thereupon  the  bank,  through  its  president,  in  writing  but  without  con- 

Bostwick  V.  Bryant  (1SS7),  113  Ind.  448,  459;  Beuel  v.  Newlin  (1891),  131  Ind.  40;  Abrams  v. 
Cureion  (1876),  74  N.  C.  523.  And  compare  Board  of  Commissioners  v.  Ja7neson  (1S82),  86  Ind. 
154,  163.     On  the  general  question,  see  infra. 

Contra:  Minnesota  Thresher  Mfg.  Co.  v.  Heipler  {i?,^2) ,  49  Minn.  395;  Lehman  v.  Press  (1898), 
106  Iowa,  389. 

1  A  part  of  the  reporter's  statement,  referring  to  a  question  in  attachment,  is  omitted. 


IrP^ 


498  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

sideration,  assigned  to  the  plaintiff  all  its  right,  title,  and  interest  in  the 
note;  and  afterward,  to-wit,  July  23,  1874,  the  original  suit  was  com- 
menced. 

On  the  trial,  the  defendants  offered  the  deposition  of  the  plaintift, 
wherein  he  testified  that  at  the  commencement  of  the  suit  he  was  the 
owner  of  the  note,  but  disclaiming  any  personal  interest  therein, 
he  further  testified  that,  as  cashier  of  the  bank,  he  had,  in  the  usual 
course  of  business,  discounted  the  note  for  the  bank,  and  that  the  sub- 
sequent assignment  to  him  was  for  the  purpose  of  the  action  only. 

Testimony  v.-as  also  offered  tending  to  prove  (and  for  the  purpose  of 
this  suit  in  fact  showing)  that  the  consideration  of  the  note  had,  in  part, 
failed,  and  also  that  the  note  had  been  procured  by  Sperry,  Hale  &  Co. 
through  fraud.  But  no  testimony  was  offered  tending  to  prove  (nor  is 
it  claimed)  that  the  plaintiff  or  the  bank  had  notice  of  such  defences  at 
the  time  of  the  indorsement  and  transfer  of  the  note. 

Hildehrant  &  Bruner,  for  the  motion. 

Hoadly,  Johnston  &  Colst07t,  contra.* 

McIlvaine,  J. — Was  the  verdict  contrary  to  the  law  and  the  evi- 
dence ? 

This  general  question  involves  two  others:  i.  Did  the  plaintiff  have 
such  interest  in  the  cause  of  action  as  to  authorize  a  judgment  in  his 
favor  ?  2.  Were  the  makers  of  the  note  entitled  to  the  same  defences  as 
if  the  action  had  been  brought  by  the  payees,  Sperry,  Hale  &  Co.? 

I.   It  is  not  disputed  that  the  note  sued  on,  under  the  ist  section  of 

the  act  of  February,  1820,  entitled  "an  act  making  certain  instruments 

of  writing  negotiable,"  was  negotiable  by  indorsement  thereon  so  as 

absoluteh"  to  transfer  and  vest  the  property  thereof  in  the  indorsee;  nor 

is  it  disputed  that,  under  the  2d  section  of  said  act,  the  plaintiff,  as 

indorsee,  was  expressly  authorized  to  maintain  an  action  thereon  in  his 

own  name.     The  claim  made  by  plaintiff  in  error  is,  that  by  section  25 

of  the  code  of  civil  procedure,  passed  in  1853,  the  plaintiff,  under  the 

I     facts  of  this  case,  could  not  maintain  an  action  on  the  note.     This  sec- 

-^,1?'*''*'^  v>*tion  provides  that,  ' '  Eyery-aGtiem-mtist-  be  prosecuted  in  the  name  of 

/iflC   V**     the   real    party_iii. Jnterest,   except  as  otherwise   provided  in  Section 

u'     twenty-seven."     Section  27  provides  that  "an  executor,  administrator, 

/j[_i  guardian,  trustee  of  an  express  trust,  a  person  with  whom  or  in  whose 

\  V^-^     name  a  contract  is  made  for  the  benefit  of  another,  or  a  person  expressly 

y^y '        authorized  by  statute,  may  bring  an  action  without  joining  with  him 

i^^  the  person  for  whose  benefit  it  is  prosecuted."     The  point  is,  that  the 

International  Bank  was  the  real  party  in  interest  and  that  the  plaintiff 

below "^as  not  within  any  of  the  exceptions  named  in  section  27  of  the 

code.  ~~"  """  " 

If  the  rule  of  the  code,  when  applied  to  the  facts  of  this  case,  is  in  con- 
flict with  the  provisions  of  the  2d  section  of  the  negotiable  instrument 
act,  the  former  must  prevail;  but  we  think  there  is  no  such  conflict, 

1  The  arguments  are  omittcl. 


WHITK,  BONNER  &  WRIGHT  :'.   STANLEY.  499 

because,  not  merely  that  the  indorsee  of  a  negotiable  instrument  is 
expressly  authorized  by  the  latter  act  to  sue  in  his  own  name,  but  also 
that  the  rule  of  the  code,  without  that  special  exception  in  section  27, 
does  not  forbid  the  action  in  plaintiff's  name. 

Whatever  the  rule  may  be  in  a  case  where  an  indorsement  of  a  nego- 
tiable instrument  is  made  for  the  mere  purpose  of  collection,  it  is  quite 
clear  that  this  is  a  very  different  case.  Here  the  payees,  who  were  the 
absolute  owners  of  the  note,  transferred  to  the  plaintiff",  by  the  indorse- 
ment and  delivery,  all  their  title  and  interest,  legal  and  equitable.  So 
that  the  property  in  the  note^was  absolute  in  the  indorsee,.. notadth- 
standing  he  might  in  equity  have  been  accountable  to  the  bank  for  its 
prO(!Wds  when  collected. 

TTnf  W  ^r  hpT^nppdpd  that  nn  prpiit?^ble  interest  in  the  note  accrued  to 
the  bank  by  the  indorsement  and  delivpn^^''^  .c;tnn1py  then  such  interest 
was  assigned  by  the  bank  to  the  plaintiff  before  suit  was  brought.  So 
that  if  the  plaintiff'^TO^Tiol'the  absolut£_owner  of  the  note,  he  must  have 
held  it  under  some  agreement  or  understanding  with  the  bank  as  trus- 
tee of  an  express  trust,  for  the  benefit  of  the  bank.  In  which  case  he 
came  within  another  exception  to  the  rule  of  section  25  of  the  code  as 
contained  in  section  27.' 

The  fact  that  the  bank  assigned  and  transferred  its  equitable  interest 
in  the  note,  if  it  had  any,  to  the  plaintiff"  without  consideration  and  for 
the  purpose  of  enabling  him  to  prosecute  the  suit  in  his  own  name,  does 
not  in  the  slightest  degree  affect  the  question  now  under  consideration, 
to  wit,  the  right  of  the  plaintiff"  to  prosecute  the  suit  in  his  own  name. 

2.  Having  determined  that  the  action  below  was  properly  prose- 
cuted in  the  name  of  the  indorsee,  the  next  qiiestion  is  of  easy  solution. 
•  The  plaintiff"  acquired  the  note  in  controvers}'  before  maturity,  in 
good  faith,  and  for  a  valuable  consideration.  There  is  no  pretense  that 
he  had  notice  at  that^time  of  any  infirmity  in  the  note  as  between  the 
original  parties.  And  conceding  that  the  plaintiff"  took  the  note  in 
trust  for  the  benefit  of  the  bank,  and  that  therefore  any  defence  which 
the  makers  had  against  the  payees,  of  which  the  bank  had  notice,  would 
be  available  against  it  in  the  hands  of  the  plaintiff",  the  case  is  still 
against  the  plaintiffs  in  error.  It  is  affirmatively  shown  that  the  bank 
had  no  knowledge  of  the  alleged  defences  against  the  note. 

We  find  no  error  in  the  record. 

Motion  overruled.- 

1  See  infra;  and  compare  Holmes  v.  Boyd,  Cashier  (1883),  go  Ind.  332. 
i  A  part  of  the  opinion,  relating  to  a  question  in  attachment,  is  omitted. 


500  IN  WHOSE  NAME  THE  ACTION  SHOUI,D  BE  BROUGIiX. 

BELL  V.  TILDEN. 

Supreme  Court  of  New  York,  General  Term,  December,  1878. 

[16  Hun,  346.] 

Appeal  from  a  judgment  in   favor  of  the  plaintiffs,  entered  upon  a 

verdict  directed  by  the  court.    The  action  was  brought  to  recover  $3, 000 

in  o-old  coin  on  the  acceptance  by  the  defendant  of  a  bill  of  exchange, 

drawn  payable  to  the  order  of  the  drawer  thereof  and  indorsed  by  him. 

Alexander  Ostmnder  and  Gilbert  O.  Hulse,  for  the  appellant. 

Redfield  &  Hill,  for  the  respondents. 

Davis,  P.  J. — On  the  trial  the  plaintiffs  produced  a  bill  of  exchange 
described  in  the  complaint,  and  proved  the  indorsement  thereof,  made 
by  the  payee  in  blank,  and  after  reading  the  same  in  evidence  rested. 
This  possession  and  production  was  prima  facie  evidence  of  ownership 
in  the  plaintiffs.  The  motion  to  dismiss  the  complaint  on  the  ground 
that  the  plaintiffs  had  not  shown  that  they  were  the  real  parties  in 
interest  and  bona  fide  holders  was  properly  denied. 

The  defendant  then  called  one  of  the  plaintiffs,  and  proved  by  him 
that  the  plaintiffs  were  agents  of  the  Bank  of  Montreal,  in  Canada,  and 
that  the  draft  was  sent  to  plaintiffs  by  the  Bank  of  Montreal,  with  in- 
structions to  put  it  in  suit  against  the  defendant,  and  for  that  special 
purpose,  and  the  plaintiffs  put  it  into  the  hands  of  their  attorneys  for  the 
purpose  of  being  sued.  The  following  question  was  then  asked : 
' '  Have  you  or  your  partner  any  interest  in  the  proceeds  of  that  draft?  " 
Tiiis  question  was  objected  to  as  immaterial.  The  objection  was  sus- 
tained, and  the  defendant  duly  excepted.  Several  questions  of  like 
import  were  asked,  objected  to,  and  excluded,  and  exceptions  taken. 
No  further  evidence  was  given  tending  to  show  any  ownership  or  inter- 
est in  the  plaintiffs  in  the  bill  of  exchange.  At  the  close  of  their  testi- 
mony the  defendant's  counsel  again  moved  to  dismiss  the  complaint, 
on  the  ground  that  mere  naked  agents,  as  plaintiffs  are  proved  to  be, 
cannot,  not  being  the  parties  in  interest,  sue  on  such  an  obligation. 
The  court  denied  the  motion,  and  defendants  duly  excepted.  The  evi- 
dence showed  clearly  that  the  plaintifls  were  mere  naked  agents  of  the 
Bank  of  Montreal,  having,  in  fact,  no  legal  title  to  the  paper  in  suit, 
and  no  interest  whatever  therein. 

The  presumptions  arising  from  possession  of  the  paper  were  com- 
pletely rebutted  and  overthrown,  when  it  appeared  affirmatively  that 
the  instrument  was  not  indorsed  to  the  plaintiffs  but  the  Bank  of 
Montreal,  and  that  the  plaintiffs  came  into  the  possession  thereof,  as 
agents  of  the  bank,  without  any  interest  in  the  paper,  with  instructions 
to  put  it  in  suit  against  the  defendant,  and  for  that  special  purpose. 
This  state  of  facts  distinguishes  the  case  from  all  those  cited  by  the 
learned  counsel  for  the  respondent.     In  each  of  the  cases  cited,  with 


BELL   :'.    TILDEX.  oUl 

possibly  the  exception  oi  Hays  v.  South  gate.  lo  Hiin.  511,  it  distinctly 
appeared  that  the  legal  title  was  in  the  plaintiffs;  and  the  case  of 
Hays  V.  Southgatc  is  distinguishable  from  this  by  the  fact  that  in  ihis 
case  it  affirmatively  appeared  that  the  possession  of  the  plaintiffs  was 
that  of  a  naked  agent.  The  possession  of  an  agent  is  the  possession 
of  the  principal,  and,  of  itself,  carries  no  legal  title  to  the  agent.  The 
Code  declares  that  every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest.  Code.  'i\\\.  It  was  subsequently  held  in  San- 
ford  V.  Sanford,  45  N.  Y.  723.  that  this  section  of  the  Code  was  not  al- 
together abrogated  by  judicial  repeal ;  and  the  criticism  of  Peckham,  J., 
upon  the  cases  referred  to,  seems  to  have  been  adopted  by  the  court. 

The  general  rule  before  the  Code  was  that  actions  could  not  be 
maintained  in  the  name  of  mere  agents.'  To  enable  an  agent  to 
maintain  an  action  in  his  own  name,  there  must  be  something  more 
than  the  mere  powers  of  a  naked  agent.  It  was  clearly  shown  in  this 
case  that  the  plaintiffs  had  nothing  btrt  such  powers. 

To  sustain  the  ruling  in  this  case,  would  be  to  hold  that  all  foreign 
corporations  may  maintain  actions  in  this  state  in  the  name  of  mere 
naked  agents,  and  thus  evade  the  provi.sions  of  our  statute  requiring 
bonds  for  costs  to  be  given  hy  such  foreign  corporations;  and  indeed 
it  would  allow  all  actions  upon  negotiable  contract  to  be  brought  in 
the  names  of  simple  collecting  agents. 

The  judgment  should  be  reversed,  new  trial  granted,  with  costs  to 
abide  the  event. 

Ingalls,  p.  J.,  concurred. 

Present — Davis,  P.  J.,  Brady  and  Ixgalls,  JJ. 

Judgment  reversed,  neic  trial  ordered,  costs  to  abide  event :- 

^Citing,  Harp  v.  Osgood,  2  Hill,  216;  Taintor  v.  Prendergast.  3  Hill,  72:  Paley  on 
Agency,  chaps.  4,  5. 

«See  also,  Iselin  v.  RovAands  (iSS3),30  Hun,  488,489,  where  Lear.ved,  P.  J.,  delivering 
the  opinion  of  the  Supreme  Court  in  General  Term,  says: 

"  One  difficulty  meets  us  at  the  outset.  The  plaintift's  allege  that  they  are  the  lawful 
holders  and  owners  of  the  drafts,  and  that  the  amount  thereof  is  due  from  defendant  to 
them.  The  defendant  denies  this  and  alleges  that  the  drafts  were  only  delivered  to  the 
plaintiffs  for  presentation,  and  that  they  are  not  the  owners  or  holders. 

"  The  plaintiffs  by  their  own  letters  say  that  they  are  the  agents  of  the  Comptoir  d'Es- 
compte  for  collecting  the  drafts.  The  referee  finds,  as  a  matter  of  fact,  that  the  indorse- 
ments of  theldrafts  and  their  delivery  to  plaintiffs  were  for  the  special  purpose  of  collection. 
But  on  this  the  referee  held  that  the  plaintif>"s  became  holders  and  owners  of  the  drafts, 
and  as  trustees  of  an  express  trust,  were  entitled  to  maintain  the  action. 

"  There  is  no  doubt  that  proof  of  the  indorsement  to  the  plaintiff's  was /riwia  /ac/V  evi- 
dence that  they  were  owners.  But  that  was  contradicted  by  the  other  proof  on  which  the 
referee  found,  as  the  fact  plainly  was,  that  such  indorsement  and  delivery  were  for  the 
special  purposes  of  collection,  and  by  the  plaintiffs'  own  statement  that  they  were  agents 
for  the  Comptoir  d'Escompte.  The  fact  also  that  the  plaintiffs,  on  being  informed  by  the 
defendant  of  the  compromise  with  Badollet  &  Co.,  made  no  objection  and  asserted  no  rights, 
as  owners,  to  the  drafts,  is  further  evidence,  if  any  were  needed,  that  they  were  in  posses- 
sion of  the  drafts  only  as  agents,  if  not  for  I?adollet  &  Co.,  at  least  for  the  Comptoir 
d'Escompte. 

"  We  have  then  the  question  xvhether  one  vjho  is  only  an  agent  for  collection^  and  has  pos- 
session of  commercial  paper  only  in  that  capacity,  can  sue  thereon  in  his  own  name.  It 
seems  hardly  necessary  to  quote  section  440  of  the  Code,  identical  in  part  with  section  iii  of 


502  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

the  old  Code,  that  every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  interest. 
This  has  now  been  the  law  for  many  years.  Before  the  passage  of  the  old  Code  the  rule 
was  different.  And  often  it  was  necessary  that  an  action  should  be  prosecuted  by  one 
who  was  not  the  real  party  in  interest,  as  for  instance,  in  the  case  of  assignments  of  con- 
tracts other  than  commercial  paper.  Hence,  decisions  prior  to  the  adoption  of  the  Code 
are  often  inapplicable.  And  even  in  earlier  decisions  under  the  Code,  the  new  doctrine 
was  hardly  accepted  in  its  full  force.  But  recent  decisions  are  conclusive  against  the 
plaintiffs.  Bell  v.  Tilden,  i6  Hun,  346,  is  almost  exactly  like  the  present  case.  Hays  v. 
Hathorn,  74  N.  Y.  486,  is  to  the  same  effect.  The  case  of  Wetmore  v.  Hegcman,  88  N.  Y.  69, 
cited  by  plaintiffs,  was  one  where  the  assignment  of  the  cause  of  action  to  the  plaintiff 
was  in  trust  for  certain  purposes  so  as  to  give  him  an  interest  therein.  And  it  does  not 
affect  a  case  like  this,  where  there  was  no  assignment  to  the  plaintiffs  and  no  interest 
given  to  them  in  the  subject-matter  ;  but  where  they  were  mere  agents  of  other  persons 
with  no  interest  themselves. 

"  Nor  were  the  plaintiffs  trustees  of  an  express  trust.  The  plaintiffs  cite  Considerant  v. 
Brisbane^  22  N.  Y.  389  [given  in  the  text,  infra\^  decided  by  a  bare  majority.  But  in  that 
case  the  contract  was,  by  its  terms,  payable  to  the  plaintiff,  described  therein  as  agent. 
So  again,  the  plaintiffs  cite  Devol  v.  Barnes,'^  Hun,  342.  There,  too,  the  plaintiff  undertook 
to  collect  certain  claims  as  his  own  and  acquired  an  interest  therein.  But  in  the  present 
case  we  have  the  case  of  plaintiffs  who  were  mere  agents  for  collection.  If  they  are 
agents,  then  their  principals  are  the  owners. 

"The  judgment  should  be  reversed  and  a  new  trial  granted,  costs  to  abide  the  event, 
referee  discharged." 

BoARDMAN  and  BocKES,  JJ.,  concurred. 

See  also,  Bostivick  v.  Bryant  (18S7),  113  Ind.  448,  459. 

Compare,  however,  Zimmer  v.  Chezv  (1S98),  34  App.  Div.  504,  508:  "The  indorsement  of 
the  note  in  blank  by  the  payee  Dalzell  and  the  production  of  it  by  the  plaintiff  constituted 
prima  facie  evidence  of  the  latter's  ownership.  4  Am.&  Eng.  Ency.  of  Law,  2  ed.  318,  and 
cases  cited.  The  mere  fact  of  subsequent  indorsements  does  not  affect  the  result.  Pre- 
sumedly the  prior  holder,  the  plaintiff,  took  up  the  note.  That  view  is  strengthened  here 
by  the  cancellation  of  the  later  indorsements.  To  rebut  this  presumption  of  ownership,  the 
defendants  rely  mainly  upon  the  plaintiff's  cross-examination.  From  this  it  appears  that, 
three  days  before  the  note  was  made,  Dalzell  gave  the  plaintiff  power  of  attorney  to  collect 
and  receive  all  moneys  payable  to  him,  and  that  the  plaintiff  received  the  i;ote  for  Dalzell, 
and  acknowledged  payment  of  a  part  of  it.  But  this  does  not  necessarily  rebut  the  legal 
presumption  of  ownership.  It  is  entirely  compatible  with  such  ownership.  The  case  is 
quite  different  from  those  cited,  Iselin  v.  Rowlands,  ^o  Hun,  4S8,  Bell  v.  Tildeii,  16  Hun,  346, 
where  there  was  explicit  and  uncontradicted  evidence  that  the  plaintiff  was  a  mere  col- 
lection agent." — Per  Barrett,}. 


VIMONT    :■.    my.    CHICAGO   &   NORTHWESTERN    RY.  CO.  503 


VIMONT   V.  THK   CHICAGO   &    NORTHWESTERN    RAILWAY 

COMPANY. 

Supreme  Court  of  Iowa,  ]vsk  Term,  i8Sf. 

[69  lozua,  296,  299.]' 

Beck,  J. — A  rehearing  was  allowed  in  this  case  upon  the  petition  of 
defendant.     .     . 

In  addition  to  the  question  expressl}-  determined  in  the  foregoing 
opinion,  upon  which  we  have  no  occasion  to  saj'  more,  and  with  the 
disposition  whereof  we  remain  well  satisfied,  other  questions  urged 
iipon  the  rehearing  seem  to  demand  further  brief  attention.  These 
questions  arise  upon  defendant's  answer,  a  demurrer  to  which  was 
sustained,  pleading,  substantially,  these  defences:  (i)  The  assign- 
ment of  the  claim  to  plaintiff  was  "collusive,  colorable  and  fraudulent," 
in  that  it  was  made  to  deprive  defendant  of  the  right  to  a  removal  of 
the  cause  to  the  federal  courts,  and  the  assignor  is  the  real  part}'  in 
interest,  and  it  is  to  receive  the  entire  benefit  of  the  claim.  (2)  The 
assignment  is  champertous,  and  is  "unlawful  maintenance."     .     .- 

The  first  defence  above  specified  may  be  disposed  of  upon  the  fol- 
lowing considerations :  If  the  assignment  was  lawful  to  defeat  the 
transfer  to  the  federal  court,  though  made  for  that  purpose,  it  can  not 
be  alleged  that  it  was  "collusive,  colorable  and  fraudulent,"  because  of 
that  motive.  The  law,  recognizing  it  as  lawful  notwithstanding  the 
motive  that  prompted  it,  will  not  pronounce  it  void  by  reason  of  the 
existence  of  that  motive.  It  is  settled  by  the  decisions  of  the 
United  States  Supreme  Court  and  this  court  that  a  transfer  to  the 
United  States  court  can  not  be  made  on  the  ground  that  the  motive 
of  the  assignment  was  to  defeat  the  transfer.^ 

In  this  case  the  assignment  was  sufficient  to  pass  to  plaintiff  the 
legal  title  to  the  claim.  He  is  vested  with  property  therein,  and,  by 
virtue  of  that  property  right,  clothed  with  authorit}-  to  maintain  an 
action  upon  the  claim. 

It  is  not  alleged  that  the  assignment  is  "collusive,  colorable  and 
fraudulent "  for  an}'  reason  other  than  the  purpose  to  prevent  the 
removal  of  the  action  brought  upon  the  claim  to  the  federal  court. 
The  plaintiff  is  the  real  party  in  interest,  required  by  the  statute  to 
bring  suit  on  the  claim.  Defendants  have  no  ground  of  complaint 
against  the  a.ssignment,  except  that  it  defeats  their  right  of  removal, 
which  the  courts  hold  it  lawfully  does.     Now,  if  the  defence  under 

1  Only  the  opinion  on  rehearing- is  given  here.  The  opinion  on  the  orig-inal  hearing-, 
which  turned  wholly  upon  a  question  of  the  assignability  of  a  claim  for  personal  injury 
sustained  by  plaintiff's  assignor  through  the  alleged  negligence  of  the  defendant,  is 
given  p.  4to  ante. 

2  Part  of  the  opinion  is  omitted. 

3  Citings  Provident  Sav.  Life  Assur.  Soc.  v.  Ford,  114  U.  S.  635  ;  s.  c.  5  Sup.  Ct.  Rep.  1 104; 
Vimont  v.  Chicago  &  N.  W.  Ry.  Co.  64  Iowa,  513. 


504         IN  WHosK  name;  tiik  action  should  Bii;  brought. 

consideration  is  suflScient  to  defeat  the  action,  the  plaintiff  can  not 
have  a  remedy  at  all  by  suit.  The  assignment  would  be  as  nothing, 
and  any  action  on  the  claim  must  be  brought  by  the  assignor  in  the 
United  States  court,  or,  if  brought  in  the  state  court,  it  would  be  trans- 
ferred to  the  federal  court.  The  law  never  does  b}-  indirection  what  it 
will  not  do  directly.  It  declares  that  the  motive  of  the  assignment  is 
not  sufficient  to  give  the  federal  court  jurisdiction,  in  a  direct  applica- 
tion made  for  a  transfer.  In  an  indirect  manner,  such  jurisdiction  is 
not  conferred  on  the  ground  of  the  motive  of  the  assignment.  The 
defendant,  as  has  been  said,  claims  on  no  other  grounds  than  that 
plaintiff  is  not  the  real  party  in  interest,  or  that  for  any  other  reason 
than  that  the  motive  of  the  assignment  was  to  defeat  a  transfer,  it  was 
void  and  fraudulent. 

Counsel  for  defendant,  upon  the  rehearing,  again  argue  the  proposi- 
tion that  the  assignment  under  which  plaintiff  prosecutes  this  action 
is  void  by  reason  of  the  fact  that  it  is  cha7npertous.  They  insist  that 
this  objection  is  not  disposed  of  by  Vimont  v.  Chicago  &  N.  W.  Ry. 
Co.,  64  Iowa,  513,  cited  in  the  foregoing  opinion  as  having  that  effect. 
The  questions  for  our  consideration  arose  upon  demurrer  to  defend- 
ant's answer.  To  attain  a  proper  understanding  of  the  precise  ques- 
tion presented  by  the  record,  it  becomes  necessary  to  state  more  par- 
ticularly the  pleadings  in  the  case.  The  petition  sets  out  the  assign- 
ment of  the  claim  to  plaintiff,  which  is  in  writing.  It  is  signed  by  the 
assignor  alone,  and  purports  to  be  "for  value  received,"  and  contains 
no  contract,  covenant,  or  expressed  obligation  binding  the  assignee. 
There  is  nothing  in  it  upon  which  the  charge  of  champert}-  can  be 
based.  It  is  simply,  in  effect,  an  assignment  of  the  claim,  and  nothing 
more.  The  defence  of  champerty  is  pleaded  in  the  fourth  count  of  the 
answer,  which  is  in  the  following  language  : 

For  further  defence  herein  defendant  says  that  said  alleged  assignment 
was  executed,  delivered,  and  accepted  by  plaintiff,  and  its  acceptance  took 
effect,  in  the  state  of  Illinois ;  and  that  at  the  time  of  the  deliver^'  and  ac- 
ceptance thereof  by  plaintiff,  and  as  a  part  of  the  same  transaction,  the 
plaintiff  executed  and  delivered  to  said  Darby  Carr  an  agreement  in  writ- 
ing, in  words  and  figures  as  follows,  to  wit : 

"  In  consideration  of  the  assignment  to  me  by  Darby  Carr  of  his  claim 
for  damages  against  the  Chicago  &  Northwestern  Railway  Co.  [describing 
it],  I  hereby  agree  to  dispose  of  the  entire  amount  realized  on  said  claim 
as  follows:  For  my  own  compensation  in  and  about  the  prosecution  of 
said  claim,  and  for  the  use  of  any  advance  of  money  I  may  make,  I  am  to 
retain  thereof  the  sum  of  fifty  dollars.  I  am  also  to  retain  all  sums  of 
money  that  I  may  advance  in  the  prosecution  of  said  claim.  Next,  I  agree 
to  pay  out  of  the  proceeds  of  such  recovery  the  reasonable  fee  of  the 
attorneys  and  agents  employed  to  prosecute  said  claim,  or  such  fee  there- 
for as  may  be  agreed  upon,  if  an  agreement  for  a  specific  amount  be 
agreed  upon,  and  the  balance  of  said  recovery  I  agree  to  pay  to  said 
Darby  Carr.  (Signed)  "  W.m.  H.  VimonT." 


VIMOXT    :■.    Tllli;   CHICAGO   &  NORTHWESTERN    RY.  C(J.  "05 

That  said  assignment  and  agreement  is  barratrous  and  champtrtous, 
and  unlawful  maintenance,  and  is  illegal  and  void,  both  in  the  state  of 
Illinois  and  Iowa;  and  that  plaintiff  has  no  right  or  cause  of  action  there- 
under, enforceable  in  this  state  or  elsewhere. 

It  clearh'  appears  from  the  pleadings  that  the  transaction  is  evi- 
denced by  two  distinct  and  independent  writings,  the  first,  an  assign- 
ment of  the  claim,  showing  nothing  to  support  the  charge  of  cham- 
pert}' ;  the  second,  a  unilateral  contract  in  the  nature  of  a  declaration 
of  trust,  binding  plaintiff  to  dispose  of  the  proceeds  of  the  claim,  when 
collected,  in  the  manner  therein  prescribed.  In  ni}-  opinion,  the  first 
instrument  can  not  be  held  invalid  and  incapable  of  enforcement  by 
reason  of  any  provision,  illegal  or  otherwise,  found  in  the  second, 
which  would  be  alone  affected  by  any  source  of  infirmity  found  in  it 
The  contracts  arc  independent,  though  the  covenants  of  one  may  be 
regarded  as  the  consideration  of  the  other.  Viniont  could  not  plead 
the  invalidity  of  the  last  contract  on  the  ground  of  its  champertous 
character,  should  he  be  sued  on  the  second  for  a  failure  to  collect  the 
claim.  Neither  could  he  set  up  a  like  defence  to  an  action  against 
him  to  enforce  the  appropriation  of  the  funds  as  prescribed  by  the 
second,  on  the  ground  that  it  is  champertous.  The  assignor,  Carr, 
could  not  plead  champerty  against  the  enforcement  of  the  first  instru- 
ment, for  it  is  not  champertous  in  character,  and  contains  no  provision 
setting  out,  or  in  any  manner  evidencing,  an  unlawful  contract. 
Whether  he  could  defeat  the  provisions  of  the  second  instrument  be- 
cause it  is  champertous  I  need  not  inquire  in  order  to  supi^ort  the  view 
just  presented.  I  conclude,  therefore,  that  the  assignment  does  not 
present  a  champertous  contract. 

I  am  also  of  the  opinion  that  the  second  instrument,  in  its  conditions 
and  terms,  does  not  embody  a  champertous  contract.  The  conditions 
for  the  payment  of  attorneys  and  agents  employed  about  the  prosecu- 
tion of  the  suit,  and  $50.00  compensation  to  plaintiff,  are  not  cham- 
pertous. The  condition  authorizing  plaintiff  to  retain  sums  of  money 
advanced  by  him  in  the  prosecution  of  the  claim  is  not  champertous, 
for  the  reason  that  plaintiff  does  not  undertake  or  obligate  himself  to 
make  any  such  advances.  It  is  not  an  agreement  to  maintain  or  sup- 
port a  lawsuit.  Plaintiff  is  not  bound  thereby  to  furnish  or  supplj' 
money  for  the  prosecution  of  an  action.  It  is  not,  therefore,  cham- 
pertous. 

But  if  it  be  assumed  that  the  terms  of  the  instrument  signed  b^' 
plaintiff  are  champertous,  a  majority  of  the  court  are  united  in  the 
opinion  that  a  defence  based  upon  that  ground  can  not  be  pleaded  in 
this  case.  It  is  a  matter  that  can  be  pleaded  onl}^  in  an  action  between 
the  parties  to  the  contract,  and,  if  not  pleaded  therein,  the  contract  may 
be  enforced  as  valid  between  them.  If  the  party  wronged  b}^  the 
champertous  contract  fails  to  plead  the  illegality  as  a  defence,  the 


506  IX   WHOSl^;    NAMU    THE    ACTION    SHOUI.D    BE)    BROUGHT. 

contract  may  be  enforced  against  him.  The  interest  or  rights  of  a 
stranger  not  being  affected,  he  can  not  set  up  champerty  to  invalidate 
the  contract.  The  defence  pertains  to  the  contract  itself,  and  can  only 
be  pleaded  in  an  action  between  the  parties  to  it.i 

We  adhere  to  the  conclusion  announced  in  the  former  opinion  filed 
in  the  case.2  Affir7Jied. 

»  Citing,  Knadlei-  i'.  Sharp,  36  Iowa,  232  ;  Hyatt  z>.  Burling-ton,  C.  R.  &  N  R.  Co.  6S 
lo^va,  662. 

'  To  this  two  of  the  five  judges  on  the  Supreme  Bench  dissented  as  follows:  Adams, 
J.,iiissej!tin^.  For  the  purpose  of  this  opinion  it  maybe  conceded  that,  if  Vimont  holds 
the  leo-al  title  to  the  claim,  he  is  sufficiently  a  party  in  interest  to  enable  him  to  maintain 
this  action.  But  in  my  opinion  he  can  not,  under  the  averments  of  the  answer  demurred 
to,  be  regarded  as  holding  the  legal  title.  The  court,  in  adjudging  that  he  does  hold  such 
title,  must  sust.ain  the  contract  of  assignment.  This  it  can  not  do  if  the  contract  is  .:h^m- 
pertous,  for,  in  such  case,  it  is  against  public  policy,  illegal  and  void. 

The  writer  of  the  majority  opinion  holds  that  the  contr.act  is  not  champertous,  and  we 
have  to  consider  whether  this  holding  is  correct.  It  is  true,  the  paper  signed  by  Carr  does 
not  show  what  the  consideration  of  the  assignment  was.  The  champertous  character  'rf 
the  transaction  appears  alone  from  the  papers  signed  by  ^'imont.  But  the  tw  1  papers  are 
to  be  taken  together.  Not  only  does  Vimont's  agreement  expressly  recite  that  it  is  mad  ■ 
"in  consideration  of  the  assignment,"  but  the  answer  expressly  avers  that,  ''  as  a  part  of 
the  same  transaction,  the  plaintiff  executed  and  delivered  to  sail  Darby  Carr  an  agree- 
ment in  writing,  in  the  words  and  figures  as  follows,  to  wit.''  Then  follows  a  copy  of 
Vimont's  agreement.  This  averment  that  the  agreement  is  a  part  of  th»  same  transacti  n 
is  admitt<.d  by  the  demurrer.  Now,  how  in  the  face  of  this  fact  the  writer  :an  properly 
say  that  the  two  papers  are  independent  of  each  other,  and  treat  them  so,  I  am  unable  to 
see.  The  holding  seems  to  nie  to  be  in  express  contravention  of  what  is  admitted  jf 
record. 

But  it  is  said,  substantially,  that  in  no  view  is  the  transaction  champertous,  "lecause 
Vimont  did  not  agree  to  prosecute  the  action,  nor  to  pay,  or  become  responsible  for  th. 
costs.  It  may  be  admitted  that  the  paper  signed  by  'S^'imont  was  very  Ingeniously  drawn, 
but  no  one  can  read  it,  and  have  the  slighcst  doubt  that  he  took  the  claim  in  trust  for  Jarr, 
to  prosecute  at  his  own  expense,  for  the  chance  of  making  a  ne*  profit  of  .^'50.  No  ither 
possibl"  object  of  the  assignment  that  the  prosecution  of  the  claim  by  ^"imont  in  his  iwn 
name  haj  been  suggested,  nor  is  it  possible  to  disc»ver  any. 

But,  aside  from  what  is  the  manifest  construction  of  the  contract,  there  is  the  controlling 
fact  that  the  case  is, in  fact, being  prosecuted  by  Vimont  in  his  own  name,  and  he  has  paid, 
or  is  responsible  for,  the  costs  ;  and  this  is  being  ione  under  the  contract  which  gives  him 
a  net  profit  of  $50  in  case  of  success,  and  nothing  more.  Now,  the  question  is  simply  this: 
Where  an  action  is  being  prosecuted  under  such  a  contract,  is  the  contract  champertous? 
That  such  a  contract  constitutes  the  ordinary  case  of  rhamperty  it  seems  to  me  that  there 
can  be  no  doubt.  In  Bouvier's  Law  Dictionary  "  champerty  "  is  defined  as  "  a  bargain  with 
the  plaintiff  or  defendant  to  divide  the  land  or  other  matter  sued  for  between  them,  if  they 
prevail  at  law;  the  champertor  undertaking  to  carry  on  a  suit  at  his  cwn  expense."  Have 
not  Vimont  and  Carr  agreed  to  divide  the  proceeds  of  the  claim  if  they  shall  prevail  at  law 
and  is  not  Vimont  responsible  for  costs,  and  so  carrying  on  the  suit  at  his  own  expense,  so 
far  as  the  case  shows?    There  can  be  but  one  answer. 

But  it  is  said  that  champerty  can  be  pleaded  only  by  a  party  to  the  champertous  contracts. 
But  this,  I  think,  can  not  be  so  when  it  is  set  up  merely  to  invalidate  ■'he  plaintiff's  title  t 
the  claim  sued  on.  The  case  is  not  different  in  principle  from  what  it  would  be  if  the  de- 
fendant had  pleaded  that  the  assignment  is  forged.  If  the  plaintiff  had  admitted  by  de- 
murrer that  it  was  forged,  wr  aid  any  one  claim  that  he  could  recover  ?  T,ut  a  contract 
which  is  illegal  is  just  as  essentially  void  as  if  it  were  forged.  It  i''  n  it  good  for  any  pur- 
pose w^hatever,  and  must  be  condemned,  and  held  as  naught  as  soon  as  its  'llegal  "haracter 
is  admitted  or  otherwise  shown.  The  defendant  does  not  set  up  the  void  character  of  *he 
contract  as  showing  that  it  is  not  liable,  but  as  showing  th?t  it  is  not  liable  t  the  plaintiff ; 
and  this,  I  think,  it  may  do,  if  a  defendant  can  ever  sho\v  that  the  plaintiff  is  not  the  real 
party  in  interest. 

RoTHROCK,  J.,  concurs  in  this  dissent. 


507 


HOAGLAXD  Z:  VAX  ETTEX. 

HOA(VLAXI)    :■•  VAN   ETTEX. 

vSuPREME  Court  of  Nebraska,  January  Term,  1888. 

[22  Ar/A  681.] 

Appeal  from  the  district  cotirt  of  Douglas  County. 

David  Van  Etien,  for  appellant. 

Warr€7i  Switzler,  for  appellee  George  A.  Hoagland. 

Maxwell,  Ch.  J.— This  is  an  action  to  foreclose  a  mechanic's  lien 
upon  certain  real  estate  described  in  the  petition,  owned  b}-  jNIrs.  \'an 
Etten.  Moyer  claims  for  material  furnished  to  one  Hayden,  a  con- 
tractor, in  the  erection  of  the  defendant  Van  Etten's  dwelling,  and 
French  is  a  senior  mortgagee.  The  amount  claimed  to  be  due  the 
plaintiff  for  material  furnished  by  him  is  the  sum  of  $803.76,  with 
interest.  He  also  claims  there  is  due  him  the  sum  of  $17.07  upon  the 
account  of  one  Andrew  L.  Wiggins,  and  the  sum  of  $18.87  on  the  ac- 
count of  Harvey  S.  Nutting.  He  further  claims  to  be  due  him  the 
sum  of  $86.00  on  the  account  of  Ruton  Gsanter  &  Co.,  and  on  the 
account  of  Nich.  Spellman  the  sum  of  $72.00,  and  $24.00  on  the  account 
of  one  \Vm.  Klatt;  $13.87  on  the  account  of  Hans  Tams;  $28.82  on  the 
account  of  Jacob  New;  $30.05  on  the  account  of  Sullivan  Bros.;  $163.12 
on  the  account  of  Sidney  D.  Crawford;  $40.87  on  the  account  of  John 
Liibbe;  $48.00  on  the  account  of  Abner  C.  Smilley;  $21.41  on  the  ac- 
count of  N.  J.  Sander;  $58.83  on  the  account  of  James  Morton  &  Son; 
$213.00  ou  the  account  of  Henry  A.  Rosters.    The  plaintiff  also  alleges 

"  that  he  owns  the  above  claims  against  said  last-named  defendant,  and 
they  are  all  past  due,  and  demand  has  been  made  on  the  said  defendant  for 
payment,  and  payment  thereof  -"as  refused  and  no  part  of  any  of  said 
claims  has  been  paid." 

The  defendant  in  her  answer  denies  that  the  plaintiff  owns  the  claims 
above  set  forth,  and  alleges  that  the  plaintiff  is  not  the  real  party  in 
interCvSt.  On  the  trial  the  court  instructed  the  jury :  "It  will  not  be 
necessary  for  you  to  determine  whether  the  assignment  was  valid  or 
not;  but  you  will  allow  the  amount  due,  if  anything,  on  each  particular 
claim  the  same  as  if  sued  on  by  the  original  party,  and  subject  to  the 
same  defences,  if  any,  regardless  of  the  alleged  assignment." 

It  is  conceded  that  the  assignments  were  merely  formal,  to  enable 
the  plaintiff  to  bring  the  action  for  all,  and  that  he  is  not  the  real  party 
in  interest.  In  justification  of  this  course,  the  plaintiff's  attorney  cites 
Pomeroy  on  Remedial  Rights  and  Remedies,  section  132.  In  all  the 
cases  cited  by  Mr.  Pomeroy  in  support  of  his  proposition,  except  two, 
the  plaintiff  has  an  interest  in  the  proceeds  resulting  from  the  suit. 
It  was  not  a  case  of  an  entire  want  of  interest,  but  merely  a  defect  of 


508  IN  WHOSE  XAMK  THE  ACTION  SHOULD  BE  BKOUOHT. 

parties  plaintiff.  In  such  case  it  is  well  known  that  if  one  of  the  proper 
parties  brings  an  action  and  no  objection  is  made  for  defect  of  parties, 
he  may  maintain  the  action  although  others  should  be  brought  in,  as 
where  a  debt  is  assigned  as  collateral  security-  for  a  less  sum  than  the 
value  of  the  debt,  the  assignee  may  maintain  an  action  on  the  security 
although  the  assignor  having  an  interest  in  the  surplus  would  be  a 
proper  party. 

Section  29  of  the  code  provides  that,  "  Every  action  must  be  prose- 
cuted in  the  name  of  the  real  party  in  interest,  except  as  otherwise 
provided  in  section  t,2.'' 

In  Jl/i//s  V.  Murray,  i  Neb.,  327,  it  was  held  that  the  assignee  or 
actual  owner  of  a  chose  in  action  is  the  proper  and  only  party  who  can 
maintain  a  suit  thereon.  This  doctrine  was  affirmed  in  Seynioiir  v. 
Street,  5  Neb.,  93,  Hickland  v.  Nebraska  City  National  Bank,  8  Neb., 
463.  The  language  of  the  statute  is  plain  and  unambiguous,  "Every 
action  vmst  be  prosecuted  in  the  name  of  the  real  party  in  interest, 
except,"  etc.  This  case  is  not  within  any  of  the  exceptions  named, 
and  therefore  must  be  considered  with  reference  solel3^  to  .section  29. 
If  a  party  having  no  interest  in  the  subject-matter  of  the  suit,  w^ho 
holds  simply  as  assignee,  and  is  to  deliver  to  his  assignor  the  proceeds 
of  the  action,  may  maintain  an  action  on  such  an  assignment,  then 
section  29  has  no  meaning  whatever.  We  do  not  care  to  enter  into 
a  discussion  of  the  propriety,  or  impropriet}',  of  requiring  actions  to 
be  brought  in  the  name  of  the  real  party  in  interest.  The  statute  con- 
tains a  plain  provision  which  this  court  has  no  authority  to  disregard. 
We  hold,  therefore,  that  an  assignee  having  no  interest  in  the  result 
of  the  suit,  and  not  entitled  to  any  portion  of  the  proceeds  thereof,  is 
not  entitled  under  section  29  to  maintain  an  action  as  the  real  party 
in  interest.  Where  a  number  of  persons  hold  mechanics'  liens  against 
certain  real  estate,  such  persons  may  and  should  be  brought  before 
the  court,  as  among  such  lienholders  there  is  no  priority,  but  each 
lien  should  stand  upon  its  own  separate  facts,  in  order  that  issue  may 
be  taken  thereon.  1 

Reversed  and  remanded. 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  one  point. 


IIOAGI.AND  :-.  VAX  KTTKN.  50!> 

irOACLAXD    r.  VAX   KTTl'X. 
SrrKi;Mi-:  Coikt  di"  Xkhkaska,  January  Term,  1888. 

[23  Neb.  462.] 

Motion  for  rehearing  of  case  reported  22  X'^eb.,  6S1. 

Warren  Sunizler,  for  the  motion. 
.  Maxwell,  J. — The  plaintiff  has  filed  a  motion  for  rehearing,  upon 
the  ground,  first,  that  the  plaintiff  can  maintain  the  action  upon  the 
claims  assigned  to  him,  although  he  is  not  the  actual  owner  thereof, 
but  merely  holds  the  legal  title ;  and  it  is  claimed  that  if  the  assign- 
ment should  be  held  to  be  void,  the  mechanic's  lien  would  thereby  be 
divested  and  such  claims  lost.  It  is  alleged  that  section  29  of  the  code 
is  complied  with  if  the  plaintiff  has  a  mere  naked  assignment  of  the 
claim,  although  he  is  not  the  part}-  beneficially  interested.  To  this 
we  can  not  give  our  assent.  At  common  law  an  action  was  required 
to  be  brought  by  a  party  to  the  contract,  even  though  he  had  parted 
with  his  entire  interest  in  it  by  assignment.  Courts  of  equity,  how- 
ever, not  only  recognize  the  right  of  the  assignee  to  bring  the  action, 
but  absolutely  required  him  to  do  so.  If  the  assignee  was  but  a  nom- 
inal owner  he  could  not  sue,  but  the  action  must  be  brought  bj'  the 
real  party  in  interest. ^ 

An  exce|)tion  was  made  where  the  assignee  held  a  nominal  interest 
as  trustee,  Story's  Eq.  PI.  1 1511.  It  is  unnecessary'  in  this  connection  to 
notice  the  exceptions  to  the  general  rule  above  stated,  as  in  the  case 
of  executors  and  administrators,  trustees  of  an  express  trust,  and  per- 
sons expressly  authorized  b}-  statute  to  sue  without  joining  the  person 
for  whose  benefit  the  action  is  brought ;  but  with  these  exceptions 
the  rule,  that  every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  is  but  a  statutory  enactment  of  the  rule  respecting 
parties  which  has  always  prevailed  in  courts  of  equit}',  and  which  such 
courts  deemed  best  adapted  to  advance  the  ends  of  justice.^ 

The  framers  of  the  code,  therefore,  having  adopted  the  equity  rule  as 
to  the  party  plaintiff,  thereby  required  the  action  to  be  brought  in  the 
name  of  the  real  part}'  in  interest — the  party  entitled  to  the  fruits  of 
the  action,  the  beneficial  claimant.  The  rule  contended  for  by  the 
plaintiff  would  have  the  effect  to  expunge  section  29  of  the  code  from 
the  statute.  At'e  adhere  to  our  former  decision,  that  the  action  must 
be  brought  in  the  name  of  the  real  party  in  interest. 

It  is  apparent,  however,  that  if  the  action  as  to  the  assigned  claims 

'  Citing,  Rogers  v  Traders  Ins.  Co.,  6  Paige  Ch.,  5S3 ;  Field  v.  Maghee,  5  Id.  539  ;  i  Van 
Santvoord's  Eq.  Pr.  72. 

«  Citing,  Grlnnell  v.  Schmidt,  2  Sandf.  706  ;  Hollenbeck  v.  Van  Valkcnburg,  5  How.  Pr. 
284;  Wallace  2/.  Eaton,  5  How.  Pr.  100;  Brownsou  i'.  Gifford,  S  How.  Pr.  395  ;  Report  of 
Com.,  pp.  123,  124. 


510  IN  WHOSK  XAMIi  TIUv  ACTIOX  SHOULD   BE  BROUGHT. 

is  dismissed  and  the  plaintiff  required  to  make  the  owners  of  such 
claims  defendants,  that  the  lien  of  such  claims  would  thereby  be  lost, 
as  the  action  would  not  be  brought  within  the  time  required  by  the 
statute.  To  preserve  such  liens,  therefore,  being  in  furtherance  of 
justice,  the  plaintiff  will  be  permitted  within  thirty  days  from  this 
date  to  acquire  all  the  interest  of  his  assignors  in  said  claims,  thereby 
joining  the  legal  and  equitable  rights  of  said  assignors  and  making 
the  plaintiff  the  absolute  owner  of  all  their  rights  in  the  premises,  the 
'  amendment  when  made  to  take  effect  from  the  bringing  of  the  action. 
The  plaintiff,  as  a  condition  of  making  such  amendment,  to  pay  all 
costs  which  have  accrued  in  court  by  reason  of  said  assigned  claims.^ 

Motion  denied. 

1  Part  of  the  opinion,  touching-  on  another  question,  is  omitted. 

The  petition  in  Hoagland  v.  Van  Etten  (iSSS),  23  Neb.  462,  was  amended  as  suggested 
in  the  opinion  given  above,  and  in  1891  the  case  came  again  before  the  Supreme  Court,  on 
appeal,  in  Hoagland  v.  Van  Etten,  31  Neb.  292.  Said  the  court,  per  Maxwell,  J.: 
"  One  of  the  principal  points  relied  upon  by  the  defendant  is  in  permitting  the  plaintiff 
to  acquire  the  equitable  as  well  as  the  leffal  title  to  the  claims  assigned  to  him.  This 
objection  should  have  been  made  after  the  modification  of  the  judgment  in  the  former 
case,  and  the  attention  of  the  court  called  to  the  objectionable  decision  then.  No  objec- 
tion'was  made  to  that  order  at  the  time,  and  the  plaintiff  complied  with  it  and  paid  a 
large  amount  of  costs  in  compliance  with  its  terms,  and  it  is  now  too  late  to  raise  the 
objection.  Aside  from  this,  the  order  itself  is  right.  These  parties  had  performed  labor 
and  furnished  material  in  the  erection  of  a  dwelling  for  the  defendant.  They  had  taken 
the  necessary  steps  tj  perfect  a  mechanic's  lien  upon  the  property  and  had  thereby  ac- 
quired an  interest  therein.  Many  of  these  claims  were  for  small  amounts,  which,  if 
brought  as  separate  actions,  would  have  mulcted  the  defendant  in  a  large  amount  of 
costs^in  each  case,  while  the  expenses  would  have  practically  reduced  the  claims  to  a 
small  amount  for  each  creditor.  In  the  interest  of  economy,  therefore,  not  only  in  be- 
half of  the  plaintiff,  but  the  defendant  as  well,  the  claims  were  assigned  to  the  plaintiff 
and  he  was  authorized  to  assert  not  only  his  own  rights  in  the  premises,  but  the  rights 
of  other  lienholders  against  the  property.  As  to  the  other  creditors,  he  was,  in  fact,  a 
trustee,  and  it  is  possible  the  action  might  have  been  sustained  on  that  ground,  although 
that  is  not  clear.  The  court,  however,  required  him  to  acquire  the  equitable  as  well  as 
the  legal  interest  in  the  liens  and  proceed  with  the  prosecution  of  the  action. 

"  The  action  had  already  been  commenced  to  en'force  the  liens,  and  the  court  required 
him  to  become  the  actual  as  well  as  the  ostensible  owner  of  the  same. 

"The  mechanic's  lien  law  is  a  remedial  statute  and  is  to  be  liberally  construed  in 
furtherance  of  justice."  (p.  298.) 


wn.hisoN  :'.  SMITH.  511 

WTTJJSOX    :■.  SMITH. 

St.  Louis  Coikt  oi"  Ai'ph.vls,  December  27,  1892. 

\_^2Mo.App.  1 33-] 

Appeal  from  St.  Louis  Q.\\.y  Circuit  Court. 

Edmond  A.  B.  Garesc/ic,  for  appellant. 

Robert  W.  Goodc,  for  respondent. 

RoMB.vuER,  P.  J. — The  plaintiff  brought  an  action  of  replevin  for 
the  possession  of  certain  household  furniture.  The  action  was  brought 
before  a  ju.stice  of  the  peace,  and  upon  its  trial  anew  in  the  circuit 
court  the  plaintiff  was  nonsuited.  An  inquiry  of  damages  was  there- 
upon had  in  favor  of  defendants,  the  jury  assessing  the  value  of  the 
property  at  $175,  and  the  damages  for  its  detention  at  $76.50.  Judg- 
ment was  rendered  accordingl}'.  Error  is  assigned  by  the  plaintiff, 
appealing  on  both  branches  of  the  case. 

It  appeared  in  evidence  that,  on  June  24,  1890,  the  defendants  made 
a  negotiable  promissory  note  for  $81.25,  payable  to  the  order  of  E.  R. 
Macke}^  on  July  24,  1890,  at  the  office  of  the  IMissouri  ^Mortgage  Loan 
Company  in  St.  Louis,  and  secured  the  note  bj'  chattel  mortgage  on 
the  property  in  controversy.  The  plaintiff  is  an  employe  of  the 
Missoxiri  Mortgage  Loan  Companj*,  and  held  this  note  for  collection 
in  August,  189 1,  and  for  some  time  prior  thereto.  The  note  remain- 
ing unpaid,  the  plaintiff  instituted  this  suit  of  replevin. 

The  only  ground  on  which  the  plaintiff  could  have  been  nonst:ited 
was  his  failure  to  show  such  title  to  the  note  in  himself,  as  would 
entitle  him  to  maintain  an  action  at  law  thereon  in  his  own  name.  If 
he  could  maintain  an  action  at  law  on  the  note,  it  necessarily  results 
that  he  could  maintain  an  action  at  law  on  the  mortgage,  which,  under 
the  decisions  in  this  state,  is  a  mere  incident  to  the  note.^ 

After  condition  broken,  the  legal  title  to  the  property  mortgaged  is 
in  the  mortgagee  - 
and,  in  case  of  assignment  of  the  mortgage  debt,  in  the  assignee. 

It  appeared  in  evidence  that  the  plaintiff  did  not  know  E.  R. 
Macke}-,  the  pa}'ee,  personally,  and  had  no  correspondence  with  him 
of  any  kind ;  and  that  this  note  was  transmitted  from  St.  Louis  to  one 
F.  J.  INIackey  in  Chicago,  who,  as  far  as  the  evidence  shows,  had 
charge  of  nearly  all  of  E.  R.  Mackey's  business  consisting  of  claims 
and  collections.  When  the  note  was  returned  to  the  plaintiff  from 
Chicago,  it  bore  an  indorsement  of  the  name  of  E.  R.  Mackej',  wliich 
indorsement  was  written  bj^  P.  J.  ]\Iackey.     It  also  appeared  that  F. 

1  Citing,  Thayer  ?■.  Campbell,  9  Mo.  2S0  ;  .Anderson  v.  Baiinig-artner,  27  Mo.  80;  Potter 
V.  Stevens,  40  Mo.  229. 

*  Citing,  Lacey  v.  Giboney,  36  Mo.  520  ;  Johnson  -/.  Hou.ston,  47  Mo.  227. 


51-'  IN  WHOSE  NAME  THE  ACTIOX  SHOULD  BE  BROUGHT. 

J.  Mackey  gave  special  verbal  instructions  to  the  plaintiff  in  regard 
to  this  note  and  mortgage,  and  its  enforcement.  It  further  appeared 
that,  in  the  suit  before  the  justice,  E.  R.  Mackey  was  made  a  coplain- 
tifif  in  this  suit,  and  his  name  is  signed  to  the  recognizance  of  appeal 
as  that  of  a  principal.  On  the  trial  in  the  circuit  court,  however,  his 
name  was  withdrawn  as  a  plaintiff. 

We  must  hold  that  upon  this  showing  the  plaintiff  was  improperly 
nonsuited.  It  has  alwa3'S  been  the  law  of  this  state  that  a  holder  of 
a  note  may  maintain  an  action  at  law  thereon  in  his  own  nanie.i 

It  is  immaterial  whether  the  note  is  negotiable  or  not  negotiable 
or  whether  the  holder  holds  it  for  collection  merely.^ 

As  far  as  the  evidence  shows,  this  note  never  was  in  the  possession 
of  E.  R.  Macke}',  except  in  so  far  as  it  was  in  the  possession  of  his 
agent,  F.  J.  Macke}-.  As  F.  J.  ]\Iackey  was  a  resident  of  Chicago,  if 
he  had  any  authority  to  collect  this  note  (which  fact  is  not  disputed), 
he  had  authority  to  indorse  it  for  collection  to  some  one  in  St.  Louis, 
where  the  note  by  its  terms  was  payable.  Under  the  law  of  agency, 
such  authority  is  implied  under  the  circumstances,  even  though  the 
agent  has  no  authority  to  make  his  principal  liable  as  an  indorsee  by 
such  indorsement.  Mcchem  on  Agency,  sees.  194,  195;  Wharton  on 
Agency,  sees.  31,  32.  Having  so  indorsed  it,  the  agent  in  St.  Louis 
became  under  all  the  authorities  in  this  state  a  holder  for  collection, 
and  could  maintain  an  action  at  law  on  the  note  in  his  own  name,  and 
after  condition  broken  on  the  mortgage,  subject  of  course  to  all  the 
equities  which  the  payee  has  against  the  true  owner.  The  fact  that 
E.  R.  Mackey  appears  to  be  the  usurer,  and  that  the  plaintiff  has  lent 
himself  to  the  enforcement  of  an  oppressive  bargain,  can  not  change 
the  applicatory  law. 

On  the  second  branch  of  the  case  the  court  committed  error  in 
instructing  the  jury  to  find  damages  for  detention,  when  no  such  dam- 
ages were  shown,  and  in  sustaining  the  finding  of  $76.50  for  such 
damages.  As  the  judgment  mu.st  be  reversed  for  error  on  the  main 
issue,  we  mention  this  matter  merely  to  avoid  the  repetition  of  such 
errors  in  similar  cases. 

All  the  judges  concur.         Judgment  reversed  and  cause  remanded. 

1  Citing,  Boeka  v.  Nuella,  28  Mo.  180  ;  Bennett  v.  Pound,  28  Mo.  598 ;  Willard  v.  Moies, 
30  Mo.  142  ;  Lewis  v.  Bowen's  Adm'r,  29  Mo.  202 ;  Harvey  -v.  Brooke,  36  Mo.  493  ;  Davis  v. 
Carson,  69  Mo.  609. 

^  Citing,  Spears  v.  Bond,  79  Mo.  467. 

3  Citing,  Webb  v.  Morgan,  14  Mo.  430 ;  Beattie  v.  Lett,  28  Mo.  596 ;  Simmons  v.  Belt,  35 
Mo.  461 ;  Jefferson  Savings  Association  t.  Morrison,  48  Mo.  273. 

NOTE. — ASSIGNEES    FOR    COLLECTION,   THE    ASSIGNMENT    ITSELF   BEING    ABSOLUTE 

ON    ITS    FACE. 

Accord  with  the  general  doctrine  of  the  text:  Guervey  t.  Moore  (1895),  '3'  Mo.  650,  66S. 
Meeker  v.  Claghorn  (1871),  44  N.  Y.  349  [the  assignment  of  an  account  was  in  writing  and 
absolute  in  terms.  Two  of  plaintiff's  assignors  testified  on  cross-examination  that  they 
"expected  to  receive  the   amount  recovered  in  the   action'"].     Curran  v.  Weiss  {iSgi),  6 


xoTi;.—  .\ssi(,m;i;s  for  collkctiox.  '  :"', 

Misc.  13a  j^assignment  of  a  claim  for  dania'^e  to  the  merchandise  of  plaintiff's  :'.ssi;;nor, 
through  defendant's  ne^'lipcnce  in  permitting  a  water-basin  to  overtlow].  Said  ihe  court; 
"  The  legal  ownership  of  the  demand  in  suit  having  been  transferred  to  plaintiff,  he  was 
entitled  to  recover,  notwithstanding  the  fact  that  the  assignor  expected  to  share  in  the 
recovery." 

Walcottv.  Uilman  (1S9S),  23  Misc.  459:  "The  justice  below  dismissed  the  complaint 
solely  on  the  ground,  as  stated  by  him, '  that  the  assignment  as  sworn  to  by  witness  ^nows 
collusion  with  assignee,  the  plaintiff's  assignor  having  testified  that  he  expected  fo 
receive  from  the  plaintiff  the  amount  of  any  recovery  that  misfht  be  obtained  in  the  action. 
This  was  error  for  which  the  judgment  must  be  reversed.  As  between  the  assignor  and  Ihe 
assignee,  there  was  a  legal  transfer  of  the  cause  of  action,  and  this  was  sufficient  to  make 
the  plaintiff  the  real  party  in  interest  for  the  purpose  of  maintaining  the  action."— P^r 
Beekman,  p.  J. 

See  also  M'alhurn  v.  Chenaull  (1S90),  43  Kan.  352,  357  :  "Another  point  is  that  the  action 
is  not  brought  by  the  real  party  in  interest.  The  Tiernan  judgment  was  assigned  toChe- 
nault  in  writing,  as  follows  : 

"  '  This  Instrument  Witneaseih  :  That  for  value  received  I  hereby  assign  to  Waller 
Chenault  the  benefit  of  the  judgment  obtained  by  me  in  the  case  of  Francis  Tiernan  v.  The 
St.  Louis,  Fort  Scott  dr  Wichita  Railroad  Company , obtained  in  the  district  court  of  Bourbon 
County,  A'ansas,  in  October,  1SS'>.  The  said  judgment  is  for  about  ^10.000;  and  the  entire 
judgment  is  assigned,  subject,  hotvever,  to  a  reservation  of  the  unpaid  attorneys''  fees  of  E. 
M.  Hulett  and  J .  D.  McCleverty,yet  unpaid  in  said  case. 
"  '  This  September  2!.,  1SS7.  Francis  Tiernan.' 

"  An  entry  of  the  assignment  was  also  appended  to  the  judgment  on  the  journals  of  the 
district  court  in  which  the  judgment  had  been  given.  The  consideration  for  the  assign- 
ment was  a  large  indebtedness  of  Tiernan  to  Chenault's  Bank,  or  the  bank  of  which  he 
was  president,  and  it  was  agreed  that  the  proceeds  of  the  judgment  should  be  applied  in 
payment  of  the  indebtedness,  and  to  the  discharge  of  an  attorney's  lien  which  had  attached 
to  the  judgment.  The  assignment  is  absolute,  and  is  such  as  to  vest  in  the  assignee  the 
whole  legal  title.  He  had  such  a  beneficial  interest  in  the  proceeds  of  the  judgment  that 
he  could  bring  an  action  in  his  own  name,  without  joining  other  parties,  who,  by  collateral 
agreement  might  be  entitled  to  a  share  in  the  proceeds.  .  .  The  plaintiffs  in  error  were 
not  limited  or  cut  off  from  any  defence  by  reason  of  the  assignment,  and  the  absence  ot 
parties  to  whom  the  assignee  must  account  can  not  cause  any  future  embarrassment  to  the 
plaintiffs  in  error."— P<?r  Johnston,  J. 

In 'Knadler  V.  Sharp  (iS73),36  Iowa,  232,  the  court  remarked:  "It  is  also  provided  by 
Revision,  section  2757:  '  Every  action  must  be  prosecuted  in  the  name  of  the  real  parly  in 
interest,  except  as  provided  in  the  next  section.'  This  language  was  first  construed,  as 
found  in  the  code  of  1851,  section  1676,  to  mean  the  party  having  the  legal  title  or  interest. 
Far-well  V.  7> /<•/-,  5  low  a,  535.  But  afterward  it  was  held  to  mean  the  party  having  the 
beneficial  interest,  as  contradistinguished  from  the  mere  holder  of  the  Jegal  title.  Co?t- 
yugham  v.  Smith,  16  Iowa,  471.  And  subsequently  it  was  held  that  the  party  holding  the 
lefal  title  to  a  note  or  instrument  may  sue  on  it,  though  he  be  an  agent  or  trustee,  and 
liable  to  account  to  another  for  the  proceeds  of  the  recovery,  but  he  is  open  in  such  cases 
to  any  defence  which  exists  against  the  party  beneficially  interested;  or  the  party  benefi- 
cially interested,  though  he  may  not  have  the  legal  title,  may  sue  in  his  own  name.  Cottle 
V.  Cole,  -20  Iowa,  481.  The  same  doctrine  was  again  affirmed  in  Rice  v.  Savery,  22  Iowa,  470 
[o-iven  m  text  ante,  p.  243].  It  follows  therefore  that  the  court  did  not  err  in  holding  that 
the  plaintiff"  might  recover  upon  all  the  claims  as  the  proper  party  to  the  action,  and  that 
the  contract  of  assignment  to  him  and  his  agreement  to  pay  over  the  net  proceeds  did  not 
constitute  champerty."— /Vr  Cole,  J.,  p.  236. 

In  accord  also  are  Ahell  Note  Co.  v.  Ilurd  (iS92),8s  Iowa, 559.  Lehman  v.  Press  (1S9S), 
106  Iowa, 389,  390.  (Compare  Goodno-.v  v.  Litchfield  (iSS4),63  Iowa,  275, 279,  where  the  plain-  ^ 
tiff  holds  as  trustee.)  McPherson  v.  Weston  (iS83),64  Cal.  275.  Toby  w.  Oregon  Pacific  R. 
R,  (1893),  98  Cal.  490:  "  A  trustee  to  whom  a  chose  in  action  has  been  transferred  for  col- 
lection is,  in  contemplation  of  law,  so  far  the  owner  that  he  may  sue  in  his  own  name." — 
Per  SEARLS,C.,p.  497.  Tuller  r.  Arnold  {iSg^),^  Cal.  522.  (A  claim  upon  an  account  for 
goods  sold  was  sent  to  D.  for  collection,  by  a  law  firm  in  Chicago,  to  whom  the  account 
had  been  sent  for  collection  by  the  vendor  of  the  goods.  The  account  was  assigned,  as  a 
matter  of  convenience  for  the  purpose  of  collection,  to  the  plaintiff,  a  clerk  in  D.'s  office.] 
Greigv.  Riordan(i2iC)T,),ggCa.\.i\(i:  "  The  assignments  were  made  for  collection,  and  no 
consideration  was  paid  by  the  assignee.  It  is  matter  of  common  knowledge  that  for  the 
purpose  of  saving  expense,  commercial  associations  and  others  resort  to  this  method.    In 


514  IX  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

such  cases  the  assignee  becomes  the  legal  holder  of  a  chose  in  action,  which  is  of  no 
moment  to  the  debtor."— Pt'r  Searls,  C,  p.  323.  Compare  Righy  v.  Zozve  (1S99),  125  Cal- 
613,615. 

Vanstrum  v.  Liljengren  (1SS7),  37  Minn.  191.    Elmquist  v.  Markoe  (1891),  45  Minn.  305. 

Anderson  v.  Reardon  (iS9i),46  Minn.  1S5:  "It  is  no  concern  of  the  defendant  whether 
the  assignee  of  a  claim  receives  the  money  on  it  in  his  own  right  or  as  trustee  of  the 
assignor.  It  is  enouo-h  for  him  to  know  that  the  plaintiff  is  the  party  in  legal  interest, 
and  that  a  recovery  by  him  will  be  full  protection  as^ainst  another  suit  by  the  assignor. 
There  is  no  room  for  the  distinction  in  this  respect  sought  to  be  made  by  defendant  be- 
tween neo-otiable  paper  and  other  chosesin  action." — P^r  Mitchell,  J.,  p.  1S6.  Minnesota 
Thresher  Co.  v.  Heipler  (1S92),  49  INIinn.  395,  given  in  text  inira.  Longfellovj  v.  McGregor 
(1895),  61  Minn.  494,  496.     Striukmeyer  v.  Lamb  (1S96),  64  Minn.  57,  60-6:. 

McDaniel  z/.  .Pr^.T5/^/- (1S92),  3  Wash.  636,  ^38 ;  and  compare  Davis  v.  JSrickson  (i&)2),  $ 
Wash.  654,  656.  Bassett  v.  Innian  (1SS3),  7  Colo.  270,  273.  Gower  v.  Stockdale  (1S95),  5  Colo- 
App.  4S9.  Walsh  f.  Allen  (iS95),6  Colo.  App.  303,305.  Sroufe  v.  Soto  (1SS6),  Ariz.  ,  21 
Pac.  R.  221. 

Compare,  Lee  v.  Pennington  (18S0),  7  111.  App.  247  :  "A  court  of  law  will  not  inquire 
whether  a  plaintiff  sues  for  himself  or  as  trustee  for  some  other  person  ;  it  is  sufficient  if  he 
hastne  legal  interest  in  the  subject-matter  of  the  suit."— Pfr  Higbee,J.  Boyd  v.  Corbitt 
(1S77),  37  Mich.  53  :  "The  only  question  in  this  case  is,  whether  a  collection  agent  who 
holds  for  collection  a  note  payable  to  order  and  whicTi  has  been  indorsed  in  blank  by  the 
owner  for  the  purposes  of  collection,  can  bring  suit  in  his  own  name.  We  have  no  doubt 
he  may  do  so.  The  indorsement  by  the  owner  must  be  understood  as  authority  for  this 
proceeding;  it  passes  the  legal  title  for  the  purposes  of  collection,  and  this  must  include 
any  necessary  suit." — Per  Curiam.  And  see  Watkins  v.  Plummer  (1892),  93  Mich.  215,  217. 
Compare  also  Haugv.  Riley  (1S97),  loi  Ga.  372,  378. 

On  the  general  rule  under  common  lav.'  pleading,  see  Lavj  v.  Parnell  (1859),  7  C.  B.,  N. 
S.  2S2,  I  Ames  Cases,  Bills  and  Notes  320,  and  note  p.  323-4. 

To  the  same  effect  is  Village  of  Kent  -v.  Dana  (1900),  100  Fed.  Rep.  56  [Action  by  Dana  to 
recover  upon  75  past-due  interest  coupons  of  .$30  each,  originally  attached  to  certain  refund- 
ing bonds  issued  by  the  village  of  Kent,  defendant  below,  a  municipal  corporation  under 
the  laws  of  Ohio.  The  bonds  were  not  due].  Said  the  Circuit  Court  of  Appeals,  per  Sev- 
ERENS,  D.  J.  (p.  63) :  "Assuming  that  the  savings  bank  delivered  these  coupons  to  Dana 
for  the  purpose  of  enabling  him  to  bring  suit  upon  them,  that  he  gave  his  check  therefor, 
and  that  it  was  understood  between  them  that  he  should  turn  over  the  proceeds  of  the  col- 
lection to  the  bank,  and  take  up  his  check, — which  is  a  construction  of  the  evidence  as 
favorable  to  the  defendant  as  it  would  bear, — still  this  would  suffice  to  enable  him  to  bring 
the  suit  in  his  own  name.  His  right  to  recover  would  be  no  larger  than  that  of  the  bank. 
In  that  respect  he  \vould  stand  precisely  in  its  position,  and,  if  the  bank  w^as  a  io«a  ^t/? 
holder,  he  would  recover  in  that  character.  The  title  to  negotiable  paper  paj'able  to  the 
bearer  passes  by  delivery,  unless  the  attendant  circumstances  show  that  such  was  not  the 
intention.  But  here  the  bank  transferred  these  coupons  for  the  purpose  of  enabling  him  to 
bring  suit.  It  is  implied  in  that  that  such  title  should  pass  as  would  enable  him  to  sue,  for 
without  it  the  object  of  the  transfer  could  not  be  accomplished.  Possession  of  such  paper 
w^here  it  is  payable  to  bearer,  or  where  it  is  payable  by  indorsement  to  the  holder,  coupled 
with  an  authority  to  bring  suit  upon  it,  is  sufficient  for  that  purpose. 

"In  La-M  V.  Parnell.,  7  C.  B.  (N.  S.)  282,  the  action  was  brought  in  the  name  of  an  agent 
as  custodian  of  paper  held  for  another,  but  indorsed  in  blank,  the  agent  being  authorized 
by  his  principal  to  bring  suit  upon  it.  It  was  held  that  he  had  sufficient  title  to  maintain 
the  suit,  Earle,  C.  J.,  saj'ing  : 

"  '  The  bill  being  indorsed  in  blank,  the  bank  has  the  right  to  hand  it  over  to  a  third  per- 
son to  sue  upon  it,  without  indorsing  it ;  and,  therefore,  the  plaintiff,  if  he  was  the  lawful 
holder  of  the  bill,  and  had  authority  from  the  bank  to  do  so,  had  a  perfect  right  to  sue 
upon  it.' 

"This  case  was  directly  approved  in  0''Brie7i  v.  Smith,  i  Black, 99,  17  L.  Ed. 64,  where  the 
suit  was  brought  by  the  cashier  of  a  bank  upon  a  note  belonging  to  it,  but  of  which  he  had 
control  for  its  use.  In  affirming  a  recovery,  against  the  objection  that  the  plaintiff  could 
not  recover  in  his  own  name.  Chief  Justice  Taney,  speaking  for  the  court,  said: 

"  '  The  authorities  referred  to  by  by  the  counsel  for  the  defendant  in  error  are  conclusive, 
and  it  can  not  be  necessary  to  discuss  these  questions,  which  \ve  consider  as  too  well  settled 
tc  be  now^  open  to  serious  controversy.' 

"  The  case  of  Boyd  v.  Corbitt,  37  Mich.  52,  is  precisely  in  point.  There  Boyd,  who  was  a 
collecting  agent  for  one  Martin,  received  from  him  a  note  indorsed  in  blank,  and  brought 


MINNESOTA  TllUUSIIICK   MAN UI-ACTU KING  CO.   T.   IIliirLlCK.  ol.j 

suit  thereon  in  his  own  name;  ;iiui  it  was  Iield  that  lie  had  sullicient  title  on  which  to  main- 
tain the  suit. 

"  Where,  as  in  Ohio,  tlie  Code  of  Procedure  requires  that  the  suit  shall  be  hrought  by  the 
real  parly  in  interest,  it  is  nevertheless  held  that,  when  the  plaintiff  is  the  lawful  holder  of 
llie  note,  it  is  no  defence  to  the  maker  to  show  that  the  transfer  under  which  the  plaintiff 
holds  it  is  without  consideration,  or  subject  to  equities  between  him  and  his  assignor,  or 
colorably,  and  merely  for  the  purpose  of  collection,  and  that  is  sufficient  if  he  has  the  legal 
title,  cither  by  written  transfer  or  delivery,  whatever  may  be  the  eeiuities  of  his  relation 
with  his  assignor.  W/'iile  v.  Slanlej',  2g  Ohio  St.  423  ;  Eaton  v.  Alger,  ^"j  N.  Y.  345 ; 
JIays  V.  Hiiihorn,  74  N.  V.  4S6 ;   Cottle  v.  Cole,  20  Iowa,  481." 

Contra  (that  one  holding  under  an  assignment  absolute  on  its  face,  but,  in  fact,  made  for 
purposes  of  collection,  can  not  sue  under  the  code).  Pixley  v.  Van  Noslern  (1884),  100  Ind. 
34  ;  Boslwick  V.  Bryant  (18^7),  1 13  lnd.44S.  [The  answer  alleged  that"  said  note  was  trans- 
ferred and  assigned  to  the  plaintiff  herein  without  consideration,  and  solely  for  the  pur- 
pose of  suing  and  collecting  the  same  for  the  benefit  and  use  of  said  Anna  S.  Bloomer, 
who  is  the  real  owner  thereof."]  Said  the  court:  "  The  statute  provides  that  every  action 
must  be  prosecuted  in  the  name  of  the  real  party  in  interest.  The  answer  shows  that 
.\nna  S.  Bloomer  is  the  owner  of  the  note,  and  the  real  party  in  interest.  The  plain  pro- 
visions of  the  statute  can  not  be  avoided.  The  plea  must  be  held  good." — Per  Zollars, 
J.,  p.  459.  Deuel  V.  JVewlin  {iS()t),i^i  Ind.  40.  Abramsv.  Cureton  (1S76),  74  N.  C.  533  ;  but 
compare,  H'cwwf  f. //<?<"A  (1885),  92  N.  C.  414,  416.  — Ed. 


mixxp:sota  thresher  manufacturing  CO. 
V.  heipler. 

vSuPREME  Court  op  ]\Iinnesota,  May  3,  1892. 
[49  Minn.  395.] 

Appeal  b}-  defendant,  Gottfred  Heipler,  from  a  judgment  of  the 
District  Court  of  Lac  qui  Parle  County,  Powers,  J.,  entered  July  6, 
1S91,  in  favor  of  the  ^Minnesota  Thresher  INIanufacturing  Company, 
plaintiflf,  for  $73.13. 

This  action  was  commenced  in  a  Justice  Court,  where  plaintiff" had 
judgment  upon  an  accepted  draft,  of  which  the  following  is  a  copy: 

:Marietta,  October  17,  1SS9. 
-1/r.  Gottfred  Heipler  : 

Please  pa}-  ^Minnesota  Thresher  Manufacturing  Company  or  order,  fifty 
dollars,  amount  due  nie  for  threshing.  Jerry  Randall. 

Witness, 
Wm.  Kane. 

It  is  hereby  expressly  understood  and  agreed  that  the  Minnesota 
Thresher  Manufacturing  Company  takes  this  order  for  collection  onh- ; 
the  net  proceeds  of  such  collection  to  be  applied  on  the  indebtedness  of 
the  drawer  of  said  order  to  the  said  Minnesota  Thresher  Manufacturing 
Company. 

ACCEPTANCE. 

I  accept  the  within  order,  and  agree  to  pa}-  the  amount  named  therein 
to  the  INIinnesota  Thresher  Manufacturing  Company  on  or  before  Decem- 
ber 15,  1SS9.  Gottfred  Heipler. 


51G  IX  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

The  defendant  appealed  to  the  District  Court  on  questions  of  law 
alone,  where  the  judgment  of  the  Justice  was  afiErmed. 

K.  O.Jerde,  for  appellant. i 

H.  L.  Hayden,  for  respondent.- 

Mitchell,  J. B3'  the  terms  of  the  order  or  draft  sued  on,  the  drawer 

directed  the  defendant  to  pay  the  plaintiff  a  certain  sum. 

The  defendant  accepted  the  draft,  expressly  agreeing  to  pay  the 
plaintiff  the  sum  named.  Clearly  the  plaintiff  held  the  legal  title  to 
the  demand,  and  was  the  real  party  in  interest. 

It  did  not  concern  the  defendant  that  there  was  an  agreement 
between  the  drawer  and  the  plaintiff  that  the  latter  took  the  order  only 
for  collection;  the  proceeds,  when  collected,  to  be  applied  on  the  in- 
debtedness of  the  former  to  the  latter. 

No  exceptions  were  taken  on  the  trial  of  the  cause  which  raise  anj- 
other  question. 

Judgment  affirmed. 

1  Counsel  for  appellant  made  the  following  points :  The  plaintiff  in  this  action  is  not 
the  real  party  in  interest.  The  order  reads  for  collection  only.  Rohrer  v.  Turrill,  4 
Minn.  407,  Gil.  309  ;  Rock  County  Bank  v.  Hollister,  21  Minn.  5*^5  ;  Third  .Xational  Bank 
of  Syracuse  V.  Clark,  23  Minn.  263. 

s  Counsel  for  respondent  insisted  that  "  the  plaintiff  is  the  real  party  in  interest  "  ; 
and  that  "  the  cases  cited  by  appellant  have  no  bearing  on  this  case." 

In  Lehman  -v.  Pr^ss  (1S98),  106  Iowa,  3S9,  the  action  waaon  promissory  notes  executed  by 
the  defendant  to  Mayer,  Engle  &  Co.     Each  note  bore  the  following  indorsements: 

"  Without  recourse.  Mayer,  Engle  &  Co."  '■'■For  collection  acc^t.  Gage,  Downs  & 
Co."  '■^  For  collection  and  return  to  Nat'l  Bank  oj  Republic,  Chicago.  W.  T.  Fenton, 
Cashier."  Held  that  the  plaintiff,  who  was  a  member  of  the  firm  of  Gage,  Downs  &  Co., 
and  brought  suitindividually,  could  maintain  the  action  in  his  own  name.  '  Suppose  that 
the  plaintiff  was  acting  for  Gage,  Downs  &  Co.,  and  that  the  notes  were  purchased  by  that 
firm,  the  rule  announced  can  not  be  sustained.  One  to  whom  a  note  is  indorsed  for  collec- 
tion may  maintain  an  action  thereon.  Bond  Co.  v.  Hurdi^  Iowa,  559;  Cottle  v.  Cole.,'2a 
Iowa,  481.  While  the  note  is  subject  to  defences  interposed!  by  the  payer  against  the  prin- 
cipal, such  defences  must  be  made  in  order  to  defeat  recovery.  If  the  plaintiff  purchased 
the  note  for  Gage,  Downs  &  Co.,  and  brought  this  action  fo»  their  benefit,  and  value  was 
paid  without  notice  of  the  note's  infirmities,  and  in  good  faith,  the  defence  must  fail. 
Farwell  -v.  Tyler,  k,  Iowa,  535.  As  affecting  the  rights  of  the  payer,  it  is  immaterial 
whether  the  principal  or  agent  brings  the  action."  —Ed, 


Gisi:i..MAN  i:t  al.,  executors,  :•.  stark.  517 

GISELMAN   I'T   AL.,  EXECUTORS,  :'.  vSTARR. 

Sui'RKMH  Court  op  Calii'orxia,  April,  1895. 

[106  Cal.  651.] 

Appeal  from  a  judgment  of  the  Superior  Court  of  Lake  County  and  . 
from  an  order  denying  a  new  trial. 

Thomas  B.  Bond,  and  Woods  Crazcford,  for  appellant. 

W.  W.  Sanderson,  and  Hudson  &  Sayre,  for  respondents. 

Henshaw,  J.— Action  by  plaintiffs  as  executors  of  the  last  will  of 
S.  C.  Hastings,  deceased,  to  reform,  and  as  reformed  to  foreclose,  a 
mortgage  executed  by  defendant. 

Starr  executed  the  note  and  mortgage  in  suit  to  William  Giselman, 
trustee,  in  payment  and  cancellation  of  an  existing  note,  also  secured 
by  mortgage,  made  by  him  to  S.  C.  Hastings.  A  few  days  thereafter 
Giselman  indorsed  the  note, 

"  Pay  to  the  order  of  S.  C.  Hastings,  without  recourse, 

"William  Gisel-max,  Trustee," 

and  delivered  it  to  Hastings.  At  the  same  time  he  executed,  as  trus- 
tee, an  assignment  to  Hastings  of  the  mortgage.  These  papers,  upon 
the  death  of  Hastings,  coming  into  the  hands  of  the  executors,  of 
whom  Giselman  is  one,  this  action  was  in  due  time  commenced. 

The  defendant  meets  it  by  answer  and  cross-complaint,  whereby  he 
claims  that  he  executed  the  note  and  mortgage  to  Giselman,  as  trus- 
tee, for  the  use  and  benefit  of  the  daughters  of  said  Hastings;  that  at 
the  time  of  the  assignment  to  Hastings  he  knew  this  fact,  and,  so 
knowing,  took  the  note  and  mortgage  without  consideration  ;  that 
thereafter  Ella  Hastings,  daughter  of  S.  C.  Hastings,  acquired  by  gift 
all  the  interest  of  S.  C.  Hastings  in  the  note  and  mortgage  ;  and  that 
the  action  is  not  prosecuted  by  the  real  parties  in  interest.  The 
named  beneficiaries  of  the  trust  and  the  widow  of  S.  C.  Hastings  are 
interpleaded  as  having  or  claiming  some  interest  in  the  mortgage  and 
note,  and  are  brought  in  under  averments  that  without  a  determina- 
tion of  their  rights  defendant  can  not  tell  to  whom  to  pay  the  amount 
found  due,  nor  with  safety  redeem  in  the  event  of  a  sale. 

Plaintiff's  answer  to  the  cross  complaint  does  not,  in  terms,  den^' 
that  the  note  and  mortgage  were  executed  to  Giselman  as  trustee  for 
the  use  and  benefit  of  the  named  children  of  S.  C.  Hastings,  but  does 
deny  that  they  are  or  ever  have  been  the  property  of  the  children  or 
any  of  them.  L^pon  all  other  material  averments  of  the  cross  com- 
plaint it  joins  issue. 

The  children  and  others  interpleaded  by  defendant  one  and  all  filed 
disclaimers,  and  in  this  state  of  the  pleadings  the  trial  was  had. 

*  The  arguments  are  omitted. 


518  IX  WHOSE  NAME  THE  ACTION  SHOULD    BE  BROUGHT. 

The  death  of  Hastings  and  their  appointment  as  executors  ad- 
mitted, plaintiffs  introduced  the  note  with  its  indorsement,  the  mort- 
gage and  the  assignment  of  it,  and  rested  upon  this  direct  evidence 
and  the  presumptions  arising  from  it.i 

I.  The  first  point  presented  by  appellant  is  that  the  transfer  by 
Giselman  to  Hastings  is  void,  since  the  note  and  mortgage  are  the 
only  instruments  creating  and  containing  the  terms  of  the  trust,  and 
there  is  nothing  in  them  to  show  that  Giselman  had  the  power  to  sell 
or  assign.  If  the  note  and  mortgage  are  the  only  instruments  creating 
the  trust,  then  is  the  trust  radically  defective  in  naming  no  beneficia- 
ries.    Civ.  Code,  sec.  2221. 

But  aside  from  this,  and  treating  the  intruments  as  defining  the 
powers  of  the  trustee,  there  is  contained  in  them,  by  necessary  impli- 
cation, the  power  to  the  trustee  to  sell  or  assign.  For  the  promissory 
note  is  made  payable  to  Giselman,  trustee,  or  order,  and  the  mortgage 
was  also  to  Giselman,  trustee,  his  assigns  and  sticcessors.  No  evidence 
having  been  offered  to  overcome  the  presumption  that  Hastings  took 
the  note  and  mortgage  for  value,  the  transfer  to  him  was  not  in  viola- 
tion of  the  trust  but  was  valid.     .     .     . 

3.  The  defendant  has  a  statutory  right  to  have  a  cause  of  action 
against  him  prosecuted  by  the  real  person  in  interest  {Code  Civ. 
Proc.y  sec.  307),- 

and  it  was  in  the  exercise  of  that  right  that  he  pleaded  lack  of  title  in 
plaintiffs  and  asked  to  have  determined  the  conflicting  claims  of  those 
whom  he  asserted  to  be  the  owners.  But  the  purpose  of  the  statute  is 
readily  discernible,  and  the  right  is  limited  to  its  purpose.  It  is  to 
save  a  defendant,  against  whom  a  judgment  may  be  obtained,  from 
further  harassment  or  vexation  at  the  hands  of  other  claimants  to  the 
same  demand.  It  is  to  prevent  a  claimant  from  making  a  simulated 
transfer,  and  thus  defeating  ai;y  just  counterclaim  or  setoff  which 
defendant  would  have  to  the  demand  if  pressed  by  the  real  owner. 
But  where  the  plaintiff  shows  such  a  title  as  that  a  judgment  upon  it 
satisfied  by  defendant  will  protect  him  from  future  annoyance  or  loss, 
and  where,  as  against  the  party  suing,  defendant  can  urge  any  defences 
he  could  make  against  the  real  owners,  then  there  is  an  end  of  the 
defendant's  concern  and  with  it  of  his  right  to  object;  for,  so  far  as  he 
is  interested,  the  action  is  being  prosecuted  in  the  name  of  the  real 
party  in  interest.  The  cases  which  seemingly  lay  down  the  broad  rule 
that  it  is  not  a  good  plea  to  allege  that  the  note  sued  upon  is  the  prop- 
erty of  another  and  not  of  plaintiff,  without  showing  some  substantial 
matter  of  defence  against  the  one  asserted  to  be  the  owner,  are  to  be 
read  in  the  light  of  their  facts,  and  so  read  they  will  be  found  to  be  in 

>  Referring  to  Code  Civ.  Proc.  Bee.  ig^'is,  subds.  8,  ii,  21,  22  ;  Civ.  Code,  sees.  1614,  3104, 
3122-24. 

"  Probably,  Code  Civ.  Proc.  sec.  367:  "  Every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  except  as  provided  in  sec.  369."  —Ed. 


GISIvLMAN  ET  AL-,  KXKCUTORS,  :'.  STAUR.  519 

strict  accord  with  what  is  here  said.  These  are  cases  \\\\^xq.  prima  facie 
legal  title  is  shown  in  plaintiff,  such  a  title  as  would  protect  defendant 
if  judgment  were  obtained  ni)on  it.  If,  under  such  circumstances,  the 
defendant  claims  another  to  be  the  real  owner,  he  must  support  his 
right  to  make  that  claim  by  showing  that  he  has  some  equity  or 
defence  against  the  real  owner  which  he  can  not  maintain  against  the 
prima  facie  legal  owner.  Such  is  the  meaning  o(  Price  z'.  Dimlap,  5 
Cal.  483;  and  Gushcc  v.  Leavitt,  5  Cal.  160;  63  Am.  Dec.  116. 

In  the  case  under  consideration  the  plaintiffs  are  prima  facie  legal 
owners,  as  executors,  of  the  note  and  mortgage.  Defendant  is  fully 
protected  against  those  whom  he  names  as  owners  and  claimants  bj' 
the  judgment  in  favor  of  the  plaintiffs,  and,  in  addition,  he  neither 
pleads  nor  shows  an}-  defence  or  .setoff  which  he  could  make  against 
the  real  owner,  were  Ella  Hastings  declared  to  be  such.  Therefore, 
b}-  satisf3'ing  the  present  judgment,  defendant  is  discharged  from 
liability  to  all  of  the  alleged  conflicting  claimants ;  and,  since  he  does 
not  dispute  the  debt  nor  its  amount,  this  is  all  that  in  equit}-  he  can 
ask,  or  should  desire.i 

The  jitdgineiii  and  order  appealed  from  are  affirmed. 

]\IcF.\RL.A.ND,  J.,  and  Temple,  J.,  concurred. 

*  I'art  of  the  opinion,  dealing  with  other  points,  is  omitted. 


WHOSe  NAME  THE  ACTIOX  SHOULD  BE  BROUGHT. 


The  real  party  in  interest  under  special  statutory  relations. 

Note. — Over  against  the  varied  class  of  cases  in  which  a  civil  action  is  regularly  brought 
in  the  name  of  the  beneficiary  of  the  action  as  being  the  real  party  in  interest  within  the 
requirement  of  the  Codes,  or  sometimes  in  the  name  of  the  legal  owner  as  being  prima 
facie  the  real  party  in  interest,  there  is  to  be  placed  a  class  of  exceptions,  where,  by  virtue  of 
a  statute,  the  action  may  be  brought,  yet  is  not  necessarily  brought,  in  the  name  of  one 
who  is  admittedly  not  the  real  party  in  interest,  but  his  representative.  Between  these 
two  classes,  however,  there  is  a  miscellaneous  group  of  cases  in  which,  because  of  the 
terms  of  some  statute,  thesoTe  bcnohciary  oi  Ine  suit  is  not  recognized  as  a  real  party  in 
interest  an^^t?a^"hot  sue  in  his  own  name,  but  the  action  must  be  brought  in  the  name  of 
one  wno^'vWiff?^TORJWmT57iencial  interest,  is  technically  the  only  real  part)'  in  interest. 


/  WEIDNER    V.  RANKIN. 

Supreme  Court  of  Ohio,  December  Term,  1875. 
[26  O.  S.  522.] 

Motion  for  leave  to  file  a  petition  in  error  to  reverse  the  judgment 
of  the  District  Court  of  Montgomery  County. 

The  original  action  was  brought  by  the  plaintiffs  in  error,  who  are 
the  widow  and  children  of  Frederick  Weidner,  deceased,  in  the  Court 
of  Common  Pleas  of  Montgomery  County,  to  recover  damages  for  the 
negligence  of  the  defendants  in  causing  the  death  of  said  Frederick. 

On  issue  joined,  a  trial  was  had,  which  resulted  in  a  verdict  and 
judgment  for  the  plaintiffs.  Afterward,  at  the  same  term,  the  defend- 
ants moved  the  court  to  vacate  the  judgment  and,  notwithstanding 
the  verdict,  to  render  judgment  for  the  defendants,  on  the  ground  that 
the  plaintiff's  were  not  authorized  to  sue  on  the  cause  of  action  set  out 
in  the  petition.  "'        — — 

The  motian  wyn  pivoiauled.  And  it  being  made  to  appear  that  during 
the  pendency  of  the  suit  Mary  Weidner,  one  of  the  plaintiffs,  had  been 
appointed  administratrix  of  said  Frederick,  deceased,  she  was  ordered 
by  the  court  on  her  motion,  to  be  made  a  party  plaintiff*  as  such  ad- 
niinistratrix.  To  the  action  of  the  court  the  de/endants  excepted. 
On  error,  the  District  Court  reversed  the  judgment  and  dismissed  the 
suit.  The  present  proceeding  is  instituted  to  obtain  the  reversal  of 
the  judgment  of  the  District  Court. 

William  Craighead,  for  the  motion. 

J.  A.  Jordan,  contra. ^ 

By  the  Court. — The  action  was  brought  under  the  act  of  March 
25,  1851,  "  requirinsj'  compensation  for  caq^^^pf  '-I'^pi^^  by  wrongful  act, 
neglect,  or  default,"  and  the  amendment  of  ]March  7,  1872.2 

I.     Under  the  statute,  the  right  to  bring  the  action  is  vested  in  the 


1  The  arguments  are  omitted. 
»  2  S.  &  C.  1139;  59  Ohio  I,.  22. 


WIvIDNKK  :'.   RANKIN.  ",21 

personal  representatives  of  the  deceased;    and  the  widow  and  next  of 
km  can  not  maintain  <nr1i  n.-tioT^  \y  \here.  own  names! 
— T.     The  amount  recovered  in  such  action  is  for  the  exclusi\'«  benefit  I 
of  the  widow  and  next  kin,  and  is  to  be  distributed  among  them  in  the      - 
proportions  provided  bylaw  in  relation  to  the  distribution  of  personalj    jk 
estates  of  persons  dying  intestate. 

The  risk  of  ascertaining  the  persons  entitled  to  the  benefit  of  the 
recovery,  and  the  duty  of  making  the  distribution,  are  not  imposed  on 
the  defendant,  but  on  the  personal  representatives  of  the  deceased. 
Besides,  if  the  widow  and  next  of  kin  could  recover  in  their  own  names 
a  joint  judgment  against  the  defendant,  the  judgment  might  be  satis- 
fied by  payment  to  either j)f  the  plaintiffs,  and  thus  defeat  the  distri- 
bution required  b3'  the  statute. 

3.  A  good  petition  must  contain  a  cause  of  action  in  favor  of  the 
plaintiff,  and  when  it  does  not  show  such  cause  of  action,  the  objection 
is  not  waived  by  the  failure  of  the  defendant  to  demur,  although  the 
facts  stated  may  constitute  a  cause  of  action  in  favor  of  a  person  not  a 
party  to  the  suit. 

We  see  no  error  in  the  judgment  of  the  District  Court.  Leave  to 
file  a  petition  in  error  is  therefore  refused.^ 

1  See  Drew  v.  Afilwaukee  R.  R.  (1S73),  Fed.  Case  No.  4079,  where  Dillon,  C.  J.,  delivering 
th-  opinion  of  the  U.S.  Circuit  Court^D.  Minnesota,  says:  "This  is  an  action  by  the  father 
t  J  recover  damages  for  the  loss  of  services  of  his  infant  daughter,  who  is  alleged  to  have 
immediately  died  by  reason  of  the  tortious  conduct  of  the  defendant's  servants.  Where 
death  has  thus  ensued,  it  is  a  settled  principle  of  the  common  law  that  no  such  action  can 
be  maintained.  .  .  .  So  far  then  as  any  right  of  recovery  exists  where  death  has  imme- 
diatelj  ensued  from  the  injury  complained  of,  it  is  by  virtue  of  express  exactment.  The 
statute  of  Minnesota  provides  that  "where  death  is  caused  by  the  wrongful  act  or  omission 
of  any  party,  the  personal  representatives  of  the  deceased  may  maintain  an  action,  if  he 
might  have  maintained  an  action,  had  he  lived,  for  an  injury  caused  by  the  same  act  or 
omission."  Gen.  Stat.  p.  546,  sec.  2.  If  an  action  can  be  maintained,  it  must  be  by  virtue 
of  this  statute,  and  this  gives  the  remedy  to  the  personal  represent.ative  of  the  deceased, 
that  is,  to  his  administrator  or  executor.  Boutiller  v.  The  Milzvaukee,  8  Minn.  97  [Gil.  72]. 
Demurrer  sustained."  So  also  Scheffler  r.  Minneapolis  Ry.  (1SS4),  32  Minn.  125;  Williams 
V.  Railroad  Co.  (1890),  91  Ala.  635. 

Bu  if  the  de.-ith  had  not  been  immediate,  the  father  would  have  been  the  proper  party 
plaintiff  in  an  action  to  recover  for  such  damage  as  he  had  sustained  in  loss  of  service  up 
to  the  time  of  the  death.  Hyatt  v.  Adams,  16  Mich.  180.  And  see  Sherman  v.  Western 
.S7«ir^  Co.;  24  Iowa,  515;    Wvmore  V.  Mahaska    Couw/y  (1SS9),  7S  Iowa,  396,  399;    Christe  v.  ^ 

Chicago  Ry.  Co.  (1S9S),  104  Iowa,  707.  %j1     ^ 

The  enactments  as  to  the   proper  party  plaintiff  in  actions  for  wrongful  death  vary    I     f'vt 
greatly  in  the  different  states;  but  the  general  principle  is  in  accord  with  the   doctrine   /      j  ' jju/^ 
shown  above.    "The  action  is  maintainable  only  by  the  person  who  is  by  the  terms  of        (^x*^} 
the  statute  authorized  to  maintain  it.    If  that  person  is  the  executor  or  administrator,  the 
action  can  not  be  brought  by  the  beneficiaries;  and  conversely,  if  the  persons  entitled  to 
sue  are  those  who  are  entitled  to  the  benefit  of  the  action,  it  can  not  be  maintained  by  the 
executor  or  administrator."     Tiffany  on  Death  by  Wrongful  Act,  sec.  116,  and  cases  there 
cited. 

Compare  also  Hartigan  v.  Southern  Pacific  Co.  (1S90),  S6  Cal.  142,  J43,  per  Fox,  J.: 
"The  right  of  actioi.  [for  damages  for  wrongful  death]  is  purely  statutory,  and  under  sec- 
tion 377  I  f  the  Code  of  Civil  Procedure  could  be  brought  by  either  the  heirs  or  the  per- 
soral  representative,  but  separate  actions  could  not  be  brought  or  maintained  by  both. 
Under  the  former  statute  it  could  only  b*  brought  by  the  executor  or  administrator. 
Kramer  v.  Railroad  Co.  (1S64),  25  Cal.  434;  but  that  law  has  been  so  amended,  in  and  by 
the  code,  that  now  the  action  may  be  maintained  by  either  the  heir  or  the  executor  or  ad- 


.^v^ 


IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


USHER   z'.  WEST  JERSEY    RAILROAD    CO^IPAXY. 

Supreme  Court  of  Pennsylvania,  May  6,  1889. 

[126  Pa.  206.] 

Before  Paxson,  C.  J.,  Sterrett,  Clark,  McCollum,  and  Mitch- 
ell, JJ. 

No.  32S,  January  Term  1S88,  Sup.  Ct.;  court  below.  No.  33,  March 

Term  1886,  C.  P.  No.  4. 

On  February  27,  1886,  Josephine  Usher  brought  an  action  in  case 
against  the  West  Jersey  Railroad  Company,  the  narr  charging,  m^er 
alia,  that  the  defendant  company,  in  carrying  John  F.  Usher  from 
Camden  to  Cape  Maj-,  by  its  carelessness  and  negligence  caused  his 
death  and  by  reason  thereof  became  liable  to  the  plaintiff  and  her 
child,  the  widow  and  next  of  kin  of  the  deceased,  for  the  injury  sus- 
tained by  them.     The  defendant  pleaded,  not  guilty. 

At  the  trial  on  November  16,  18S7,  before  Willson,  J.,  the  plaintiff 
proved  the  death  of  John  F.  Usher,  a  citizen  of  Pennsylvania,  by 
being  thrown  from  the  defendant  company's  train,  while  a  passenger 
thereon,  near  Malaga,  N.  J.,  and  that  he  left  to  survive  him  a  widow, 
the  plaintiff,  and  one  child.  The  plaintiff  then  put  in  evidence  the 
statute  of  New  Jerse}',  act  of  March  3,  1848,  P.  L.  151.  sees,  i  and  2.1 

The  plaintiff  then  rested,  when  the  defendant  moved  the  court  to 
order  a  nonsuit,  for  the  reason  that  the  action  was  not  brought  by  the 
personal  representative  of  the  deceased  husband,  as  required  b}^  the 
New  Jersey  statute,  the  death  having  been  caused  in  that  state.  The 
court  allowed  the  motion,  and  ordered  judgment  of  nonsuit  to  be 
entered,  with  leave,  etc.     Motion,  rule,  etc. 

The  rule  to  show  cause  why  the  judgment  of  nonsuit  should  not 
be  vacated  having  been  argued,  on  January  21,  1888,  the  court, 
Willson,  J.,  citing  Knight  v.  Railroad  Covipa^iy,  108  Pa.  250;  Dinnick 
V.  Railroad  Co.,  103  U.  S.  11,  and  Patton  v.  Railroad  Co.,  96  Pa.  169, 
discharged  the  rule,  whereupon  the  plaintiff  took  this  writ,  assigning 
as  errors  the  order  entering  the  judgment  of  nonsuit  and  the  order 
discharging  the  rule  to  show  cause  wh}'  the  judgment  should  not  be 
vacated. 

Mr.  George  S.  Graham  (with  him  3Tr.  John  Roberts),  for  the  plain- 
tiff in  error. 

Mr.  David  W.  Sellers,  for  the  defendant  in  error.^ 


ministrator.  On  this  subject  the  court  has  recently  said:  'But  one  action  is  permitted, 
and  that  action  may  be  brought  either  by  the  heirs  of  the  deceased,  or  by  his  personal 
representative;  and  when  one  action  is  brought  and  the  court  has  obtained  jurisdiction 
of  it,  that  is  the  only  action  which  the  statute  permits.'  Miinro  ^•.  Dredging  Co.  (iS90),84 
Cal.  SiS-"-'E'^- 


»  This  statute,  so  far  as  material,  is  quoted  in  the  opinion. 
'  The  arguments  are  omitted. 


usin;u  :•.  \vi:st  jicksicy  raii.koad  company. 


523 


Mitchell,  J.— John  F.  Usher  was  killed  by  an  accident  upon  the 
defendant's  road  in  New  Jersey,  under  circumstances  of  negligence, 
as  we  must  assume,  for  which  he  would  have  had  an  action  had  he 
been  only  injured.  Hut  having  been  killed,  his  right  of  action,  under 
the  universal  rule  of  the  common  law,  terminated  with  his  life.  If 
any  right  of  action  remained,  it  must  have  been  wholly  based  upon 
statute,  and  as  the  occurrence  out  of  which,  if  at  all,  the  right  must 
arise,  took  place  in  New  Jersey,  it  is  to  the  .statutes  of  that  state  alone 
that  we  must  resort  to  ascertain  the  nature  of  the  right,  and  the  party 
in  whom  it  is  vested. 

It  is  not  questioned  that  the  action  is  transitory,  and  that  it  may 
be  .sustained  in  the  courts  of  this  state,  if  jurisdiction  be  acquired 
over  the  defendant.  Adverse  decisions  have  been  made  on  this  point 
in  several  states,  but  for  Pennsylvania  it  has  been  settled  by  this 
court  in  Knight  v.  Railroad  Co.,  io8  Pa.  250.  Comity  will  enforce 
rights,  not  in  their  nature  local,  and  not  contrar)-  to  the  policy  of  the 
government  of  the  tribunal,  no  matter  where  arising,  and  without 
regard  to  whether  the}'  are  of  common  law  or  statutory  origin.  There 
is  no  difference  in  this  respect  between  such  rights,  except  in  the 
presumption  that  common  law  rights  in  other  states  are  similar  to 
our  own,  and  the  absence  of  such  presumption,  and  consequent  neces- 
sity of  proof,  in  regard  to  rights  merely  statutory. 

The  statute  of  New  Jersey,  March  3,  1848,  P.  L.  151,  provides  in 
section  i, 

"  That  whenever  the  death  of  a  person  shall  be  caused  by  wrougful  act, 
neglect,  or  default,  and  the  act,  neglect,  or  default  is  such  as  would,  if 
death  had  not  ensued,  have  entitled  the  party  injured  to  maintain  an  ac- 
tion, and  recover  damages  in  respect  thereof,  then,  and  in  every  such  case, 
the  person  who,  or  the  corporation  which,  would  have  been  liable  if  death 
had  not  ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding 
the  death  of  the  person  injured,  and  although  the  death  shall  have  been 
caused  under  such  circumstances  as  amount  in  law  to  felony. 

"  Section  2.  That  every  such  action  shall  be  brought  by  and  in  the 
names  of  the  personal  representatives  of  such  deceased  person  ;  the  amount 
recovered  in  every  such  action  shall  be  for  the  exclusive  benefit  of  the 
widow  and  next  of  kin  of  such  deceased  person,  and  shall  be  distributed 
to  such  widow  and  next  of  kin  in  the  proportions  provided  by  law  in  rela- 
tion to  the  distribution  of  personal  property  left  by  persons  dying  intes- 
tate," etc. 

The  i^iresent  action  was  brought  by  the  wklowjaf-tfeher,  and  we  thus 
have  the  question  presented  whether  she  can  maintain  the  action  in 
her  own  name  and  to  her  own  use. 

The  question  has  never  been  expressly  decided  in  this  state,  nor,  so 
far  as  we  can  learn,  elsewhere. ^     .     .     .     The  general  course  of  deci- 


>  Part  of  the  opinion,  relating  to  Pennsylvania  decisions  which  have  a  collateral  bear- 
ing on  the  question  in  hand,  is  omitted. 


524 


IN    WHOSE    NAME    THE   ACTION    SHOULD    BE    BROUGHT. 


/' 


sioiis  bearing  collaterally  upon  it,  is,  however,  adverse  to  sustaining 
such  an  action  except  by  the  very  one  whom  the  statute  names  as 
entitled  to  bring  it.  Thus  in  Woodard  z:  Railroad  Co.,  lo  Ohio  St., 
121,  it  was  held  that  an  administrator  appointed  in  Ohio  could  not 
maintain  an  action  in  Ohio  for  a  death  caused  by  negligence  in  Illi- 
nois, although  it  was  proved  that  the  statutes  of  both  states  were  alike, 
and  gave  such  an  action  to  the  administrator.  The  court  held  that  the 
Illinois  statute  gave  the  action  onh'  to  the  Illinois  administrator,  and 
that  while  the  Ohio  administrator  had  a  right  of  action,  b}'  the  Ohio 
statute,  for  causes  arising  in  that  state,  3-et  that  statute  could  not  sup- 
port an  action  for  causes  arising  in  Illinois. 

Woodard  v.  Railroad  Co.  was  approved  and  followed  bj'  the  Su- 
preme Court  of  Massachusetts  in  Richardson  v.  Railroad  Co.,  98  Mass., 
85,  upon  the  same  grounds,  the  onlj'  difference  being  that  in  the  latter 
case  it  did  not  appear  that  there  was  anj-  law  in  Massachusetts  giving 
an  action  under  similar  circumstances. 

A  broader  view  of  the  statute  was  however  taken  in  Leonard  v. 
Navigatioji  Co.,  84  N.  Y.  48,  and  Deniiick  v.  Railroad  Co.,  103  U.  S.  11, 
where  it  was  held  that  the  statutes,  though  not  having  any  extra- 
territorial force,  would  be  recognized  by  comity,  and  that  as  they  give 
an  action  to  the  personal  representative  generall}-,  without  limitation 
as  to  the  authority  under  which  he  is  appointed,  an  administrator  of 
the  home  jurisdiction  can  maintain  the  action,  even  for  causes  arising 
in  another  state,  upon  proof  of  the  laws  of  such  state  authorizing  the 
action. 

With  these  latter  decisions  accords  our  own  case  of  K?iiglil  v.  Rail- 
road Co.,  already  cited.  But  none  of  the  cases  raise  or  discuss  the 
question  involved  here,  whether  a  widow  can  maintain  an  action  in 
her  own  name,  under  a  foreign  statute,  which  expressh'  directs  the 
action  to  be  brought  by  the  administrator,  though  for  the  ultimate 
benefit  of  the  widow  and  next  of  kin. 

We  are  thus  left  to  discuss  the  question  upon  general  princijiles. 

At  the  outset  we  may  say  that,  ^^'^  nntinn  p^n  get  no  support  from 
the  fac^that  a  closely  similar  statute  in  this  state  gives  the  right  to 
sue,  expresslyand  exclusiveh',  to  thewidow^Jf  there  be  one,  for  the 
benefit  of  herself  and  her  childrem  It  is  not  seriously  claimed  that 
our  statute  has  any  extra-territorial  force  which  can  produce  rights 
from  occurrences  in  New  Jersey.     On  this  point  all  the  authorities 


The  language  of  the  New  Jersej'  statute  is  that  "  every  such  action 
shall  be  brought  bj'  and  in  the  names  of  the  personal  representatives 
of  such  deceased  person."     As  this  language  is  entirely  clear,  unquali- 


'  Citing,  Whitford  v.  Railroad  Co.  23  N.  Y.  4S4 ;  Woodard  v.  Railroad  Co.  10  Ohio  St.  121; 
Richardson  v.  Railroad  Co.  98  Ma.ss.  S5;  Com.  to  use  of  Allen  -'.  Railroad  Co.  45  Md.  41; 
Selma,  etc.,  R.  Co.  f .  Lacey,  43  Ga.  461 ;  Auderson  v.  Railroad  Co.  37  Wis.  321 ;  McCarthy 
V.  Railroad  Co.  18  Kan.  46. 


USHER  Z'.  WEST  JERSEY  RAILROAD  COMPANY. 


fied,  and  peremptory,  it  would  seem  to  settle  the  question  without 
more.  But  it  is  sought  to  escape  this  conclusion  by  insisting,  first, 
that  as  the  amount  recovered  is  to  beJo£  the  exclusive  benefit  of  the 
widow  and"iiext  of  kin,  the  widow  may  be  allowed  to  sue  for  it  in  her 
own  nanie;  and  secondly,  thaFtlie  second  section  concerns  only  the 
remedy,  and  tnerefore  may  be  disregarded  by  the  courts  of  Pennsyl- 
vania, who  may  itrlTilitiister  the  rights  of  the  /ex  loci,  under  the  procedure 
of  the  lex  fori.  TiSerTeve,  however,  that  a  brief  consideration  will 
show  that  neither  ofThese  grounds  is  tenable. 

As  to  the  first,  there  is  no  room  for  latitude  of  construction.  The 
meaning  of  the  language  used  is  plain  and  unambiguous,  and  its  direc- 
tions mandatory.  It  is  an  established  rule  thatjjtatutoryjieme^k^are 
to  be  strictly  pursued,  and  we  have"no  right  when  the  lecrjslatnre  have 
cTniimuuded  one  iorm,  to  sa£_JhaL-an other  w^'il  gpr^-P  the  purpose 
ellimlly  kiJlyeTT:  The  law-makingpower  has  settled  the  remedy  as  well 
as  the  right,  and  courts  are  not  authorized  to  vary  or  depart  from 
either.  IMoreover,  the  distinction  made  in  this  statute  between  the 
party  having  the  right  of  action  and  the  ultimate  beneficiarj-,  is  famil- 
iar to  all  common  law  states,  and  is  of  settled  importance,  especially 
in  those  where,  as  in  New  Jersey,  the  administration  of  law  and  equity 
is  not  only  in  separate  forms,  but  by  separate  tribunals.  In  the  face 
of  this  settled  distinction,  clearly  recognized  and  commanded  by  the 
statute,  it  would  be  an  act  of  judical  usurpation  to  say  that  the  man- 
date of  the  statute  may  be  disregarded.  In  this  connection  the  language 
of  our  brother  Greex,  in  Books  v.  Damnlle  Bor.,  95  Pa.  166,  is  very 
strong  and  pertinent :  "No  other  persons  have  been  clothed  with  the 
right,  and  hence  no  other  persons  can  sustain  such  actions.  The 
present  action  is  brought  by  an  administrator  to  recover  damages  for 
injuries  resulting  in  the  death  of  the  intestate.  But  the  legislature 
has  not  declared  that  such  a  person  ma}-  maintain  such  an  action,  and 
hence  the  right  to  do  so  does  not  exist." 

But  secondl}^  is  the  question  of  the  party  who  ma}-  sire  merel}-  a 
question  of  the  remedj-,  and  therefore  determinable  b}'  the  law  of  the 
forum?  Undoubtedly  there  are  cases  where  it  is  so.  Whether  an 
infant  shall  sue  by  guardian  or  by  next  friend,  and  whether  an  as- 
signee shall  sue  in  his  own  name  or  that  of  his  assignor,  and  the  like, 
are  clearly  questions  of  procedure  onlj*.  But  where  the  matter  is  not 
of  form  merely,  hnt  n't  rio-ht.  the  remedy  must  follow  The  law  of  t!ie 
rights  The  second  section  of  the  statue  in  question  can  not  be  disre- 
garded, or  separated'^om  the  tirst;  they  are  Ts  closelv  interwoven^ 
and  as  necessary  to  ^a(!^h  other,  asifthey  were  part  of  the  same  section. 
This  is  plain  frOTIl  Lllb  most  cursorj"  examination.  The  first  section 
confers  no  righl,  bl'_kny  kind,  or 'on  jm^jjpdy.     It  merely  imposes  a 

ight,  and  without  it  the  first 
Apart,  the  first  gives  no 


liabilitv.     The  second  section  coi 


would  be  utterly  nugator}-  and  ineffective. 

right,  the  second  imposes  no  Habilitv :  together,  they  give  the  liability, 


526         IN  WHOSE  name;  the  action  should  be  brought 

the  right,  the  part}'  to  enforce  the  right,  and  the  party  entitled  to  the 
benefit,  and  they  give  all  these  together,  by  plain  words  which  consti- 
tute one  grant,  to  wit,  an  action,  to  be  enforced  as  given,  and  not 
capable  of  being  split  up  into  different  rights,  with  varying  remedies, 
according  to  the  tribunals  in  which  they  may  chance  to  be  asserted. 

If  this  result  were  at  all  doubtful  on  principle,  there  is  another  con- 
sideration of  controlling  weight.  It  is  unquestionable  that  in  New 
Jersey  the  personal  representative  alone  can  sue,  and  it  is  ecjually 
clear  that  he  can  maintain  his  action  there,  notwithstanding  this 
action,  or  any  other,  brought  by  another  party  in  another  jurisdiction. 
It  would  be  a  strange  per\-ersion  not  only  of  comity,  but  of  justice  to 
entertain  an  action  here,  which  would  either  oust  the  right  of  the  legal 
party  in  the  place  where  the  cause  of  action  arose,  or  subject  the  de- 
fendant to  as  many  separate  recoveries  as  parties  coiild  be  found  who 
might  be  entitled  under  the  laws  of  different  forums  to  bring  actions 
under  similar  circumstances. 

Nor  is  the  argument  helped  by  the  suggestion  that  as  the  action  by 
the  personal  representative  is  only  a  means  to  an  end — i.  e.,  the  bene- 
fit of  the  parties  ultimately  entitled  to  the  damages,  the  court  can 
control  the  disposition  of  the  verdict,  so  as  to  administer  the  rights  of 
all  parties  according  to  the  law  of  New  Jersey.  Why  should  our  courts 
undertake  such  an  unnecessary  task,  in  the  face  of  a  direct  prohibition 
by  the  law  of  New  Jersey  ?  The  administration  of  the  law  of  another 
jurisdiction  is  never  desirable,  and  at  best  is  full  of  difficulties  and 
uncertainties.  It  is  assumed  ex  necessitate  when  assumed  at  all,  and 
it  would  certainly  be  pushing  comity  beyond  its  legitimate  boiinds,  to 
assume  to  do  for  the  tribunals  of  New  Jersey  what  the}'  certainly 
would  not  do  for  themselves,  administer  the  rights  of  one  party- 
through  a  suit  brought  by  another. 

Before  closing  I  may  say  that  the  statute  of  New  Jersey,  as  of  most 
of  the  other  states,  is  an  almost  literal  transcript,  as  far  as  it  goes,  of 
the  9  and  lo  Vict.,  c.  93,  commonly  known  as  Lord  Campbell's 
Act.  1  have  examined  the  English  digests  without  finding  any  case 
bearing  upon  this  question,  but  it  may  be  noted,  as  some  indication 
of  the  view  taken  of  that  act,  that  a  possible  inconvenience,  such  as  is 
alleged  in  this  case,  has  been  provided  for  by  the  27  and  28  Vict.,  c.  95, 
s.  I,  which  enacts,  that  if  there  shall  be  no  executor  or  administrator, 
or  there  being  such,  he  shall  fail  to  bring  suit  for  the  space  of  six 
months  after  the  death,  then  such  action  may  be  brought  by  and  in 
the  name  of  all  the  persons  for  whose  benefit  the  action  by  the  execu- 
tor would  have  been.  This  is  certainly  a  strong  indication  of  the 
understanding  that  nothing  but  a  statute  could  authorize  an  action  in 
the  name  of  anyone  but  the  personal  representative  to  whom  the  right 
was  given  in  the  first  instance. 

The  learned  judge  was  right  in  entering  a  non-suit  and  the  judg- 
ment is  affirmed.^ 

•  See  also  Oates  v.  Union  Pacific  Ry.  (1891),  lo.^  Mo.  514.  — Ed. 


WOODEN  v.  TIIIC  WICSTERN  NEW  YORK  &:  PJ'.XX'A  K.  R.  CO.  OlV 


WOODEN   V.   THE    WESTERN    NEW  YORK    AND    PENNSYL- 
VANIA   RAILROAD    CO^IPANY. 

Court  of  Appeals  op  New  York,  March  io,  1891.      ^  ^^ 

[126  A'".  V.  10.]  ny^ 

Appeal  from  an  interlocutory  judgment  of  the  General  Term  of  the       *^ 
Superior  Court  of  the  City  of  Buffalo,  overruling  a  demurrer  to  the 
complaint  herein.  /y 

This  was  an  action  to  recover  damages  for  the  alleged  negligent    ^ 
killing  of  plaintiff's  husband  by  defendant. 

The  complaint  alleged,  in  substance,  that  plaintiff  is  a  resident  of 
New  York  State;  that  she  was  appointed  by  the  surrogate  of  Erie 
County,  N.  Y.,  administratrix  of  her  husband's  estate;  that  defendant 
is  a  domestic  corporation  operating  a  railroad,  a  portion  of  which  ex- 
tended into  Pennsylvania;  that  her  husband  was  killed  in  said  state 
by  its  negligence;  that  he  left  no  will,  but  left  plaintiff,  his  widow, 
and  three  children  him  surviving;  that  in  consequence  of  such  neg- 
ligence plaintiff  and  said  children  sustained  damages  to  the  amount 
of  $20,000;  that  the  statute  of  Pennsylvania  allows  an  action  in  such 
case  to  be  maintained  by  the  widow,  the  sum  recovered  to  go  to  her 
and  the  children  in  the  proportion  they  would  take  his  other  personal 
property  in  case  of  intestacy;  that  such  statute  does  not  limit  the 
amount  of  recovery;  that  such  statute  is  similar  to  the  provision  of 
the  Code  of  Civil  Procedure  of  the  State  of  New  York,  in  relation  to 
actions  to  recover  damages  for  negligence  causing  death.  Judgment 
was  demanded  for  $20,000. 

/o/m  G.  Alilbiirn,  for  appellant. 

Harlow  C.  Curiiss,  for  respondent.^ 

Finch,  J. — This  appeal  is  from  an  interlocutory  judgment  overrul- 
ing a  demurrer  and  determining  that  the  complaint  assailed  stated  a 
good  cause  of  action.  That  pleading  alleged  that  the  plaintiff  was 
and  is  a  resident  of  this  state,  and  the  defendant,  a  corporation  created 
and  existing  under  our  laws.  The  contest  thus  is  between  a  resident 
individual  and  a  domestic  corporation.  The  latter  owned  and  oper- 
ated a  line  of  railroad  extending  beyond  our  boundaries  into  the  ad- 
joining state  of  Pennsylvania,  and  the  complaint  alleged  that  in  that 
state  the  plaintiffs  husband  was  killed  by  the  negligence  of  the 
defendant  company.  The  complaint  further  averred  that  the  statute 
of  that  state  gave  a  right  of  action  for  the  injury  sustained  by  the 
widow  and  children  ;  that  the  remedy  could  be  enforced  in  the  name  of 
the  former  as  plaintiff,  but  for  her  own  benefit  and  that  of  the  children  ; 
and  that  such  .statute  was  of  similar  import  to  that  existing  in  our 

>  The  argiuneiits  are  omitted. 


528 


IX  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROfGHT. 


i^ 


own  jurisdiction.     Judgment  was  thereupon  demanded  for  damages  in 
the  sum  of  twenty  thousand  dollars. 

The  demurrer  interposed  raised  two  objections :  first,  that  the 
statutes  of  the  two  states  were  not  similar,  but  different;  and,  second, 
that  the  action  could  not  be  maintained  here  in  the  name  of  the  widow, 
but  only  in  that  of  an  executor  or  administrator  of  the  deceased ;  and 
the  final  result  sought  to  be  established  was  that  the  widow  could  not 
maintain  an  action  in  this  state  because  that  is  contrary  to  our  stat- 
ute, and  that  the  administratrix  could  not,  because  that  is  contrary  to 
the  Pennsylvania  statute  ;  and  so,  there  is  no  remedy  whatever  in 
our  jurisdiction. 

Certain  propositions  essential  to  the  inquiry  before  us  have  been 
explicitly  determined  in  McDonald  v.  Mallory,  jj  N.  Y.  546,  and  need 
no  other  citation  for  their  support.  That  case  held  that  the  liability 
of  a  person  for  his  acts,  whether  wrongful  or  negligent,  depends  in 
general  upon  the  law  of  the  place  in  which  the  acts  were  committed ; 
that  actions  for  injuries  to  the  person  in  another  state  are  sustained 
here  without  proof  of  the  lex  loci  because  they  are  permitted  by  the 
common  law  which  is  presumed  to  exist  in  the  foreign  state ;  that 
such  presumption  does  not  arise  where  the  right  of  action  depends 
upon  a  statute  which  confers  it ;  and  that  in  such  case  the  action  can 
only  be  maintained  here  by  proof  that  the  statutes  of  the  state  inTvhich 
the  injur}" occurred  give  the  rignt  01  acTToSTand  are  simifaFto  oilFown . 

"Upon  the  question  of  similarity  we  have  also  held  that  the  two 
statutes  iTeed_not  be  identical  in  their  terms  or  preciselv  alik£Jaut  it 
^s  enough  if  thev  are  of  similar  import  and  character,  founded  upon 
the  "gSme^prmcTpTe  and  possessing  the  same  general  jittributes. 
Leonm'd  v.  Lolumbia  :i,team  i\az\  Co.,  84  N.  Y.  53.  It  is  quite  evident 
that  the  two  statutes  are  of  similar  import.  They  are  founded  upon 
the  same  principle,  are  aimed  at  the  same  evil,  construct  the  same 
sort  or  kind  of  action,  and  give  it  for  the  benefit  of  the  same  class  of 
individuals.  In  both  the  utter  failure  of  redress  at  common  law  where 
the  injury  ended  in  death  was  the  injustice  for  which  a  remedy  was 
enacted;  and  in  both  the  new  action  was  given  for  the  benefit  of  those 
who  had  suflFered  an  injur}'  as  the  consequence  of  the  wrong.  This 
fundamental  agreement  in  the  main  and  substantial  characteristics  of 
the  two  statutes  is  not  affected  by  the  differences  of  detail  which  the 
demurrer  points  out. 

The  fir.st  is  that  by  the  lex  loci  the  proper  person  to  bring  this  action, 
and  the  only  person  who  can  maintain  it,  is  the  widow,  while  by  our 
law  the  right  of  action  is  given  to  the  executor  or  admini.strator.  But 
it  is  given  to  the  latter  not  in  his  broad  representative  character,  but 
solely  as  tru.stee,  in  a  case  like  the  present,  for  the  widow  and  children. 
Hegerich  v.  Keddie,  99  N.  Y.  267.  It  is  not  a  right  which  survives  to 
the  personal  representatives,  but  a  right  created  anew.  The  real 
parties  in  interest,  those  whose  injury  is  redres.sed,  whose  right  is  vindi- 


WOODEN  V.  Tin-;  WF.STlvRN  NEW  YORK  &  PENN'A  R.  R.  CO.  529 


cated,  to  wlioni  all  damages  go,  are  one  and  the  same  in  both  forums. 
If  the  formal  parties  are  different,  the  substantial  and  real  parties  are 
identical,  and  the  difference  in  the  trustee  appointed  by  the  law  to 
represent  their  right  is  not  such  a  difference  as  to  bar  our  tribunals 
from  their  jurisdiction,  or  make  the  two  statutes  dissimilar  under  the 
rule. 

It  is  claimed,  however,  that  even  in  that  event  the  right  of  action 
accruing  in  the   place  of  the  transaction  can  only  be  enforced  in  our 
jurisdiction  under  our  remedial  forms,  and  so,  should  have  been  brought 
by  the  plaintiff  not  as  widow,  but  as  administratrix,  to  which  office 
she  had  been  appointed  in  this  state.     But  it  must  not  be  forgotten 
that  the  cause  of  action  sued  upon  is  the  cause_ofLiiction_given  byj;he 
/ejc  loci,  and  vindicated  here  and  in  our  tribunals  upon  principles  of| 
comTty.      84  N.  Y.  53,  supra.      That  cause  of  action  is  given  to  the 
widow  in  her  own  right  and  as  trustee  for  the  children,  and  we  open 
our  courts  to  enforce  it  in  favor  of  the  party  who  has  it,  and  not  to 
establish  a  cause  of  action  under  our  statute  which  never  in  fact  arose. 
"We  refer  to  the  lex  fori  and  measure  it  by  and  compare  it  with  the  lex 
loci,  I  think,  for  two  reasons;   one,  that  the  party  defendant  may  not 
be  subjected  to  different  and  varying  responsibilities,  and  the  other, 
that  we  may  know  that  we  are  not  lending  our  tribunals  to  enforce  a 
right  which  we  do  not  recognize,  and  which  is  against  our  own  public 
policy ;  and  we  do  not  refer  to  our  law  as  creating  the  cause  of  action 
which  we  enforce.     It  is  the  cause  of  action  created  and  arising  in 
Pennsylvania  which  our  tribunals  vindicate  upon  principles  of  comity, 
and,  therefore,  must  be  prosecuted  here  in  the  name  of  the  party  to 
whom  alone  belongs  the  right  of  action  ;    and  that  rule  the  courts  of 
Pennsylvania  enforce  where  the  cause  of  action  arises  here,  by  per-  I 
mitting  it  to  be  brought  by  the  executor  or  administrator  to  whom  by  l 
our  law  the  right  is  given,  although  not  by  their  own.      Usher  v.  West  \ 
Jersey  R.  Co.,  126  Penn.  St.  207. 

But  the  second  difference  relied  on  is  that  in  Pennsylvania  there  is  ^ 
no  restriction  upon  the  amount  of  damages  which  may  be  recovered, 
while  in  our  state  they  can  not  exceed  five  thousand  dollars.     That 
restriction  pertains  to  the  remedy  rather  than  the  right.     Dennick  v. 
Central  Railroad  of  New  Jersey,  103  U.  S.  11.     It  is  a  limitation  upon 
the  discretion  of  the  jury  in  fixing  the  amount  of  damages,  but  not 
upon  the  right  of  action  or  its  inherent  elements  or  character.     The 
restriction  indicates  our  public  policy  as  to  the  extent  of  the  remedy, 
and  the  plaintiff  who  chooses  to  avail  herself  of  our  remedial  procedure  I 
must  submit  to  our  remedial  limitations  and  be  content  with  a  judg-  / 
ment  beyond  which  our  courts  can  not  go.     They  can  not  exceed  it  in 
a  case  arising  here,  and  no  principle  of  comity  requires  them  to  enlarge 
the  remedy  which  the  plaintiff  voluntarily  seeks.    There  may  be,  there 
very  possibly  is,  an  exception  to  that  rule,  resting  upon  its  own  pecul- 
iar reasons,  in  a  case  where  the  defendant  is  not,  as  here,  a  domestic 


530  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

corporation,  formed  tinder  our  law,  and  so  entitled  to  the  benefit  of  our 
remedial  limitations,  but  it  is  a  corporation  of  the  state  within  whose 
jurisdiction  the  cause  of  action  arose,  and  by  whose  law  no  restriction 
upon  the  amount  of  damages  is  permitted  or  enacted.  We  do  not 
decide  that  question ;  but  the  same  reasoning  which  would  expose 
such  a  corporation  to  the  law  of  its  own  jurisdiction  would  serve 
equally  to  justify  the  right  of  the  domestic  corporation  to  be  protected 
by  the  remedial  limitations  of  its  jurisdiction.  The  difference  between 
the  two  statutes,  therefore,  does  not  strictly  affect  the  rule  of  damages, 
but  rather  the  extent  of  damages,  and  that  extent,  as  limited  or  un- 
limited, does  not  enter  into  any  definition  of  the  right  enforced  or  the 
cause  of  action  permitted  to  be  prosecuted.  And  so  the  causes  of 
action  in  the  two  forums  are  not  thereby  made  dissimilar.  These 
views  lead  to  an  affirmance  of  the  interlocutory  judgment. 

That  judgment  should  be  affirmed  with  costs  but  with  leave  to  the 
defendant  to  withdraw  the  demurrer  and  plead  anew  within  twenty 
days  after  service  of  a  copy  of  the  judgment  entered  upon  filing  the 
remittitur,  and  upon  payment  of  the  costs  of  the  action  from  the  inter- 
position of  the  demurrer  to  that  date. 

All  concur.  Judgvient  accordingly. 


POPP  V.  CINCINNATI,  HAINIILTON  &  DAYTON   RAILWAY 

COMPANY. 

United  States  Circuit  Court,  S.  D.  Ohio,  W.  D.,  INIay  22,  1899. 

[96  Fed.  Rep.  465.] 

The  action  is  by  jNIinnie  Popp,  as  administratrix  of  John  L.  Popp, 
deceased,  against  the  Cincinnati,  Hamilton  &  Dayton  Railwaj-  Com- 
pany, to  recover  damages  for  his  wrongful  death.  The  petition  is  as 
follows : 

Plaintiff  is  a  citizen  of  the  state  of  Indiana,  and  is  the  duly  appointed 
and  qualified  administratrix  of  the  estate  of  her  husband,  John  L.  Popp, 
deceased.  The  defendant  is  a  corporation  organized  under  the  laws  of 
Ohio,  and  is  a  citizen  of  Ohio  and  resident  of  this  district,  and  was  on  the 
2ist  day  of  September,  189S,  operating  a  railroad  between  Cincinnati,  Ohio, 
and  Toledo,  Ohio,  and  other  points. 

On  said  21st  day  of  September,  1898,  plaintiff's  decedent  was  in  the  em- 
ploy of  defendant  as  a  locomotive  engineer,  and  while  riding  upon  an 
engine  in  the  discharge  of  his  duty  near  Leipsic,  Ohio,  on  the  line  of  said 
railroad,  said  engine  became  derailed,  and  plaintiff's  decedent  was  caught 
in  the  wreck  which  followed,  and  was  killed.  The  said  derailment  and 
death  of  plaintiff's  decedent  was  caused  wholly  by  the  negligence  of 
defendant,  its  agents  and  employes,  in  maintaining,  at  and  about  the  place 
where   said   derailment  occurred,  its   roadbed,  ties,  track,  frog,  and  other 


POPP  V.  CIXCIXXATI,  HAMILTON  &  DAYTON  RAILWAY  CO. 


531 


appliances  in  a  defective  and  dangerous  condition,  and  unfit  for  running 
trains  thereon,  which  was  known  to  defendant,  or  could  by  due  care  on  its 
part  have  become  known,  and  was  unknown  to  said  decedent,  John  L.  Popp, 
and  could  not  by  due  care  on  his  part  have  been  known  to  him. 

The  said  John  L.  Popp  left  surviving  him  a  widow,  Minnie  Popp,  who,  as 
administratrix,  is  plaintiff  herein,  and  one  child,  a  boy  aged  lo  years,  who 
have  been  damaged  by  reason  of  the  premises  in  the  sum  of  $io,oqo,  for 
which  plaintiff  asks  judgment. 

To  this  petition  the  defendant  demurs. 

C.  M.  and  E.  W.  Cisl,  for  plaintiff. 

Maxzvell  &  Ramsey,  for  defendant. 

Thompson,  District  Judge. — This  cau.se  is  submitted  to  the  court 
upon  a  demurrer  to  the  petition  upon  the  ground  that  it  does  not 
appear  therefrom  that  the  court  has  jurisdiction  of  the  action. 

I.  It  is  said  that,  for  aught  that  appears  in  the  petition,  the  plain- 
tiff may  have  been  appointed  administratrix  in  a  foreign  country,  or 
in  some  state  of  the  Union  other  than  Ohio,  and  that  under  section 
6133  of  the  Revised  Statutes  of  Ohio  a  foreign  administrator  can  not 
maintain  an  action  "  for  death  caused  by  wrongful  act "  under  sections 
6134,  6134^,  and  6135  of  said  statutes.  This  claim  is  based  upon  a 
construction  of  section  6133  which  would  exclude  actions  for  wrongful 
death  as  not  being  brought  by  the  foreign  executor  or  administrator 
"in  his  capacity  of  executor  or  administrator,"  because  any  damages 
recovered  in  such  action  would  not  become  assets  of  the  estate,  but 
would  be  apportioned  among  the  wife,  husband,  children,  or  next  of 
kin  of  the  deceased.  I  do  not  think  this  construction  sound.  I  think 
the  manifest  intention  of  the  legislature  was  to  allow  foreign  executors 
and  administrators  to  prosecute  any  action  which  might  be  prosecuted 
by  an  executor  or  administrator  appointed  in  this  .state,  "  in  like  man- 
ner and  under  like  restrictions  as  a  nonresident  may  be  permitted  to 
sue."i 

7..  It  is  said  that  the  beneficiaries  under  the  statute  are  the  real 
parties  in  interest,  and  that  federal  jurisdiction,  based  upon  diverse 
citizenship,  has  relation  to  the  citizenship  of  the  real  parties  in  inter- 
est, and  not  to  that  of  mere  nominal  parties;  that  the  plaintiff  is  a 
mere  nominal  party,  and,  for  aught  that  appears  in  the  petition,  the 
other  beneficiary  may  be  a  citizen  of  Ohio,  and  therefore,  jurisdiction 
not  appearing  upon  the  face  of  the  petition,  the  action  must  be  dis- 
missed. The  plaintiff,  in  the  opinion  of  the  court,  is  not  a  mere  nom- 
inal party.  She  is  a  real  party,  so  far  as  the  prosecution  in  the  suit  is 
concerned.  It  is  not  a  case  where  the  suit  is  being  prosecuted  in  the 
name  of  somebody  else,  where  the  party  actively  conducting  the  litiga- 
tion is  doing  it  in  the  name  of  the  state,  in  the  name  of  a  next  friend, 
or  the  like,  but  it  is  a  case  where  the  administratrix  is  the  active  party 
in  the  prosecution  of  the  suit,  who  institutes  it,  carries  it  on,  and,  with 

•  Citing,  Duchesse  D'Auxy  v.  Porter,  41  Fed.  68;   Noonan  v.  Bradley,  9  WaU.  394,  403. 


532  IN  whose;  name  the  action  should  be  brought. 

the  sanction  of  the  court,  may  compromise  or  dismiss  it.     She  has 
absolute  control  of,  and  is  responsible  for,  the  conduct  of  the  case.i 

In  the  Siezi-art  Case,  i6S  U.  S.  445.  i8  Sup.  Ct.  105,  the  question  was 
whether  a  cause  of  action,  arising  in  Maryland,  could  be  sued  upon  in 
the  District  of  Columbia,  owing  to  the  peculiarities  of  the  Maryland 
statute  requiring  suits  to  be  brought  in  the  name  of  the  state.  It  was 
not  a  question  of  federal  jurisdiction,  and  the  court  held  that,  the  state 
of  Maryland  not  being  the  beneficiary  of  the  fruits  of  the  litigation,  the 
suit  might  be  brought  in  the  District  of  Columbia  b^-  the  personal 
representative  of  the  deceased.  The  case  is  thus  stated  in  the  digest : 
"An  action  for  death  caused  by  negligence  in  INIarj-land,  where  the 
statute  provides  for  an  action  in  the  name  of  the  state  as  nominal 
plaintiff,  but  for  the  benefit  of  certain  prescribed  heirs,  is  not  such  a 
special  remedy-  for  a  purel}-  statutory-  right  of  action  as  would  prevent 
the  maintenance  of  an  action  by  the  administrator  in  the  District  of 
Columbia,  where  the  statute  provides  for  actions  by  personal  repre- 
sentatives in  such  cases  for  the  benefit  of  certain  prescribed  heirs, 
although  the  beneficiaries  ma^-  not  be  exactl}'  the  same  under  the  two 
statutes." 

In  suits  bj'  the  state  on  relation  of  A.  B.,  or  bj-  a  next  friend,  the 
state  and  the  next  friend  are  not  real  parties,  in  the  sense  that  the}- 
have  an  interest  in  the  result  of  the  litigation,  nor  in  the  sense  that 
they  control  the  litigation ;  but  executors,  administrators,  trustees, 
etc.,  although  they  have  no  personal  interest  in  the  fruits  of  the  litiga- 
tion, yet  are  real  parties  in  the  sense  that  the}-  control,  and  are 
responsible  for,  the  litigation. 

The  dcmiirrc7'  ivill  be  overruled. 


HAYNES   ET   AL.  v.  HARRIS. 

Supreme  Court  of  Iowa,  December  Term,  1S71. 

Vll  Iowa,  516.] 

Action  at  law  upon  a  promissor}'  note,  executed  by  defendant  to 
Maria  Haynes,  April  14,1860,  and  due  one  day  after  date. 

The  petition  alleges  that  the  payee  of  the  note  died  intestate  in  the 
State  of  Indiana,  July  20,  1862;  that  no  admini.stration  was  ever 
granted  upon  her  estate ;  and  that  plaintiffs  are  her  sole  heirs.     It  is 

'  Citing,  Harper  f .  Railroad  Co.,  36  Fed.  102 ;  Coal  Co.  v.  Blatchford,  11  Wall.  172  ;  Knapp 
V.  Railroad  Co.  20  Wall.  117;  Chappedelaine  v,  Dechenaux,  4  Cranch,  306;  Childress  v. 
Emory,  8  Wheat.  642 ;  Clarke  -•.  Mathewson,  12  Pet.  164  ;  Bonnafee  v.  Williams,  3  How. 
574  ;  Osborn  v.  Bank,  9  Wheat.  738  ;  Irviue  v.  Lowry,  14  Pet.  298  ;  Rice  v.  Houston,  13  Wall. 
66;  Davis  v.  Gray,  16  Wall.  220 ;  Florida  v.  Anderson,  91  U.  S.  676;  Walden  t'.  Skinner, 
loi  U.  S.  589;  Davies  v.  Lathrop,  12  Fed.  353;  Shirk  v.  City  of  L,a  Faj-ette,  52  Fed.  857 ; 
Reinach  v.  Railroad  Co.,  58  Fed.  33;  Morris  v.  Lindauer,  4  C.  C.  A.  162,  54  Fed.  23;  Bangs 
V.  Loveridge,  60  Fed.  963  ;  Pennington  v.  Smith,  24  C.  C.  A.  145,  78  Fed.  399. 


IIAVNKS  KT  AL.  :'•  HARRIS. 


alleged  that  upon  her  death  the  real  and  personal  estate  owned  by  her 

came  into  the  possession  of  plaintiffs  as  her  heirs.      Plaintiffs  aver 

that  the  note  in  suit,  upon  the  death  of  the  payee,  became  the  property 

of  plaintiffs  as  her  heirs,  and  that  they  still  own  and  hold  the  same. 

The  answer  denies  plaintiffs'  ownership  of  the  note,  and  avers  that 

the  property  in  said  note,  upon  the  death  of  the  payee,  vested  in  an/   ^^ 

administrator  appointed,  or  to  be  appointed;  that,  under  the  laws  of 

the  state  of  Indiana,  the  time  for  taking  out  letters  of  administration  ^    **V 

has  not  elapsed ;  and  that  a  suit  upon  the  note  by  an   administrator 

is  not  barred.  y 

The  cause  was  tried  to  the  court  without  a  jury,  and  judgment  ren-  I  W^J**^ 
dered  for  plaintiffs,  in  the  amount  of  the  note  and  interest.  Defend-  /  '^^gA 
ant  appeals.  ^ 

Mynsier  &  Might,  for  the  appellant.  d^'f^ 

Clmton,  Hart  &  Brezver,  for  the  appellees.i 

Beck,  Ch.  J. — Upon  the  trial  of  this  case,  under  the  issues  formed 
by  the  pleadings,  the  parties  agreed  that  the  allegations  of  the  peti- 
tion, to  the  effect  that  no  administration  had  been  taken  out,  upon 
the  estate  of  the  payee  of  the  note,  in  Indiana,  or  elsewhere,  and  that 
she  died  intestate,  at  the  time  and  place  stated  in  the  petition,  should 
be  taken  as  true.  This  admission,  and  the  note  sued  upon,  was  all 
the  evidence  introduced  by  plaintiffs.  Defendant  gave  in  evidence 
the  statutes  of  the  state  of  Indiana,  which  provide  no  limitation  by 
lapse  of  time;  against  granting  administration,  and  that  the  personal 
representatives,  when  duly  appointed,  succeed  to  the  personal  estate 
of  the  deceased.  No  other  evidence  was  given  by  either  party.  It 
will  be  remarked,  that  it  is  shown,  neither  by  the  pleading  nor  the 
evidence,  that  the  estate  of  the  payee  of  the  note  was  not  indebted,  nor 
is  it  averred  or  proved  that  plaintiffs  paid  debts  of  the  deceased,  or  held 
the  note  for  that  purpose.  We  are  called  upon  to  decide  whether, 
under  the  facts  of  the  case,  plaintiffs  can  maintain  this  action. 

At  common  law  the  personal  property  of  an  intestate  goes  to  the 
administrator  and  not  to  the  heirs.      Upon  the  appointment  of  an 
administrator  his  title  in  such  property  relates  back  to  the  death  of^ 
the  intestate.     There  is  no  statute  in  this  state  changing  these  rules. 
Rhodes  z\  Stout,  26  Iowa,  313. 

The  fact  that  no  administator  has  been  appointed  does  not  conferi 
upon  the  heirs  the  property  in  the  personal  effects  of  the  deceased.l 
If  delay  in  granting  administration  for  ten  years,  or  any  other  longer! 
time,  would  have  this  effect  no  reason  can  be  given  why  the  same  re-  * 
suit  would  not  be  accomplished  by  a  delay  of  five  years,  or  a  shorter 
period.  It  is  very  plain  that  the  length  of  time  intervening  between 
the  death  of  the  intestate  and  the  appointment  of  the  administrator, 
can  have  no  influence  in  determining  that  the  property  belongs  to 
the  heir.     If,  upon  the  death  of  the  intestate,  the  title  of  personal 

>  The  argument  for  appellant  is  omitted. 


534  TX   WHOSE   NAME   THE  ACTION   SHOULD   BE    BROUGHT. 

»  property  does  not  vest  in  the  heir,  it  will  not,  in  the  future,  on  ac- 
I  count  of  delay  in  taking  out  administration.     We  conclude  that,  in 

JJij.  I  the  case  before  us,  the  property  in  the  note  sued  on  is  not  shown  to 
I  be  in  plaintiffs.  The  fact  that  the  time  limited  by  the  statutes  of  this 
i    state  in  which  administration  may  be  granted  had  expired,  does  not 

>V^*     \   demand  a  different   conclusion.      If  the   heir,   at   the   death  of  the 

/    intestate,  has  no  property  in  the  personal  effects  of  the  estate,  it  is 

difficult  to  see  how  the  fact  that  no  other  person  has  will  give  him 

the  title.i 
A^  II.  Plaintiffs'  counsel  insist  that,  as  plaintiffs  are  the  real  parties  in 
lA.**^  interest,  they  may,  under  the  statutes  of  this  state,  maintain  this 
action.  The  difficulty  just  here  is  that  the  evidence  in  the  case  does 
not  disclose  the  fact  jto  be  that  plaintiffs  are  the  realjarties  in 
interest.  Suppose  the  estate  to  be  indebted,  the  creditors  would  be 
flrstentitled  to  the  proceeds.ofthe  note,  and  if  it  should  be  insolvent 
the  heirslvould  have  no  interest  whatever  in  the  note.  But,  counsel 
reply,  the  time  for  taking  out  letters  of  administration  has  expired, 
and  the  creditors,  if  there  be  any,  are  barred  from  establishing  their 
claims  against  the  estate.  We  are  not  prepared  to  hold  that  a 
creditor,  in  no  case,  could  not  reach  the  note  in  suit  and  subject  it  to 
his  debt.  It  is  quite  probable  that,  if  a  creditor  holding  a  claim 
against  the  estate  would  show  that  he  had  been  guilty  of  no  laches, 
as  for  instance  that  he  had  not  known  of  the  death  of  the  intestate,  or 
that  through  the  fraudulent  acts  and  representations  of  .plaintiffs  and 
defendant,  he  had  delayed  in  taking  out  letters  of  administration  or 
the  like,  he  would  be  aided  by  some  proceeding  known  to  the  law  or 
chancery  to  recover  his  claim  out  of  the  note  sued  on  in  this  case. 
There  is  no  evidence  before  us  showing  that  the  estate  is  free  from 
debts  that  may  be  enforced  against  the  note. 

We  are  not  called  upon  to  discuss  the  question,  but  there  is  no  im- 
1  i  propriety  in  our  expressing  the  opinion  that  plaintiffs  are  not  with- 
I  out  a  remedy  in  case  it  be  made  to  appear  that  there  are  no  debts 
against  the  estate  and  that  letters  of  administration,  on  account  of  the 
lapse  of  time,  can  not  be  taken  out.  In  such  a  case  plaintiffs'  legal 
or  equitable  rights  to  the  proceeds  of  the  note  could  not  be  ques- 
tioned. If  the  law  would  supply  no  remedy,  equity,  which  "is  the 
correction  of  that  wherein  the  law,  by  reason  of  its  universality,  is 
deficient,"  would  afford  relief. 

III.  The  plaintiffs'  counsel  contend  that  it  does  not  appear  from 
the  petition,  that  plaintiffs  claim  to  hold  the  note  as  heirs,  and  base 
their  right  to  recover  upon  that  ground.  They  insist  that  the  peti- 
tion avers  generally  the  ownership  of  the  note  by  plaintiffs,  and,  as 

'  As  supporting  these  views.  Beck,  C.  J.,  cited,  Woodin  v.  Bagley,  13  Wend.  453  ;  Beecher 
V.  Grouse  &  Bruce,  19  id.  306;  Jenkins  v.  Freyer,  4  Paige's  Ch.  47;  Lawrence  v.  Wright, 
23  Pick.  128;  HaU  v.  Surges,  s  Gray,  12;  Coons  v.  NaU's  Heirs,  4  Litt.  264;  Brunk  v. 
Means,  11  B.'  Monr.  217 ;  Roorback  v.  Lord,  4  Conn.  347 ;  Smith  v.  Drury,  37  Mo.  20. 


PIIIXNY  V.  WARREX.  535 

they  are  in  possession  of  the  instrument,  they  must  be  presumed  to 
be  the  owners  in  the  absence  of  proof  to  the  contrary ;  and,  there 
being  no  such  proof  in  this  case,  judgment  was  properly  rendered  in 
their  favor. 

We  do  not  think  the  petition  will  support  the  construction  put  upon 
it  by  counsel.  The  obvious  meaning  of  the  pleading  is  that  plaintiffs 
are  the  owners  of  the  note  because  of  their  heirship.  It  is  quite  ap- 
parent that  the  pleader  intended  to  convey  that  idea.  A  critical  con- 
sideration of  the  language  used  strengthens  this  conclusion. 

In  our  opinion  the  evidence  before  the  court  below  does  not  sup- 
port the  judgment.     It  is  therefore  Reversed?- 


{^^< 


C-r-x-'-^ 


PHINNY  V.  WARREN. 

Supreme  Court  of  Iowa,  December  Term,  1879. 

[52  Iowa,  332.] 

Action  in  equity  upon  a  promissory  note.  The  note  was  executed 
by  one  Coonrod  as  principal  and  the  defendant  as  surety,  and  made 
payable  to  one  Joseph  P.  Phinny,  who  died  intestate  JNIarch  22,  1S67. 
The  plaintiffs  are  the  heirs  of  the  intestate,  and  claim  to  be  the  owners 
of  the  note  as  such  heirs.  No  letters  of  administration  ever  issued 
upon  the  intestate's  estate.  This  action  was  brought  after  the  lapse  \^  \ 
of  five  j-ears  from  his  death,  but  within  ten  years  from  the  time  the  ^ 
note  matured.  The  plaintiff  set  up  as  the  ground  of  equitable  jurisdic- 
tion the  lapse  of  five  years  and  the  fact  that  no  letters  have  been 
issued.    There  was  judgment  for  the  plaintiffs.    The  defendant  appeals. 

M.  E.  Ocits,  J.  A.  Hoffman,  and  /.  H.  Warre?i,  for  appellant." 

C.  P.  Searle  and  /.  F.  Laccy,  for  appellees. 

Adams,  J. — The  defendant  insists  that  the  plaintiffs  have  no  remedy 
at  law  because  there  has  been  no  administration,  and  no  distribution, 
and  no  remedy  in  equity  because  there  is  no  ground  of  equitable  juris- 
diction. If  the  time  had  not  expired  within  which  an  administrator 
might  be  appointed,  it  would  seem  to  be  certain  that  the  action  could 
not  be  maintained.     Hayties  v.  Harris,  33  Iowa,  516. 

But  it  is  shown  that  the  statutory  period  has  expired  and  that  no 
administrator  can  be  appointed.  Whether  the  heirs  can  now  be 
regarded  as  holding  the  legal  title  to  the  note  we  need  not  determine. 
They  acquired  an  interest  in  it  at  the  death  of  the  intestate,  subject 
only  to  such  rights  as  an  administrator  might  have  if  one  should  be 
appointed.- 

As  no  administrator  can  now  be  appointed,  it  appears  to  us  that 
their  interest  is  subject  to  nothing.     WTiatever  obstacle,  then,  there 

'  Followed  iu  Baird  v.  Brooks  (1884),  65  Iowa,  40. 

«  Citing,  Ferryman  v.  Green,  39  Ala.  133 ;  Thompson  v.  Thomas,  30  Miss.  152. 


530  IX  -WHOSE  name;  the  action  vShould  be  brought. 

might  have  been  at  one  time  to  their  maintaining  an  action,  it  has' 
ceased  to  exist. 

The  amount  of  personal  property  in  this  state  which  has  not  been 
administered  upon,  and  never  can  be,  is  doubtless  verj-  large.  It 
would  do  incalculable  mischief  to  adopt  a  rule  which  would  prevent 
the  heirs  or  their  vendees  from  maintaining  an  action  in  relation  to 
such  property.  Whether  the  plaintiffs'  remedy  was  at  law  instead  of 
equity  we  need  not  inquire.  The  defendant  does  not  complain  that  he 
was  entitled  to  a  trial  by  ordinary  proceedings  of  which  he  has  been 
wrongfully'  deprived.     We  think  the  judgment  must  be        Affimiied. 

OX  rehearixg. 

Per  Curiam. — Upon  the  death  of  the  pa3'ee  of  the  note  it  ma}'  be 
conceded  that  the  note  became  the  property  of  the  administrator,  if 
there  was  one.  But  if  no  administrator  is  appointed  it  will  not  do 
to  say  the  note  ceased  to  be  propertj-.  Property  can  not  be  thus 
blotted  out.  There  is  no  statute  which  requires  that  letters  of  admin- 
istration should  be  taken  out,  or  that  imposes  a  penalt}-  for  not  so 
doing.  It  ma}^  be  that  at  common  law  personal  propert}^  goes  to  the 
administrator,  and  if  none  is  appointed  it  possibl}^  would  escheat.  But 
the  statute  provides  that  personal  property  not  required  for  the  pay- 
ment of  debts  shall  be  distributed  to  the  heirs,  and  this  must  be  the 
rule  whether  an  administrator  has  been  aj^pointed  or  not.  The  statute 
further  provides  that  administration  can  not  be  granted  after  the  lapse 
of  a  certain  period  of  time,  except  possibly  where  there  has  been 
fraud,  accident,  or  mistake. 

During  si:ch  statutory  period  it  may  possibly  be  the  title  to  the 
property  is  in  abeyance.  At  its  expiration,  however,  the  title  thereto 
vests  in  the  heirs  at  law,  and  they  may  maintain  an  action  thereon. 
The  title  of  the  heirs  is  joint  until  there  has  been  a  division,  just  as  it 
would  be  if  the  propert}-  consisted  of  real  estate;  to  recover  which  all 
the  heirs  must  join,  notwithstanding  their  shares  ma}-  be  different. 
The  note  in  question  belongs  to  the  plaintiffs  jointh-,  and  it  matters 
not  what  their  respective  shares  may  be  ;  therefore  the  plaintiffs  could 
have  maintained  an  action  at  law  on  the  note.  The}',  however,  en- 
titled their  action  in  equity.  No  motion,  however,  was  made  to  trans- 
fer to  the  law  docket,  nor  was  any  objection  made  to  the  form  of  the 
action,  nor  was  it  insisted  that  the  action  should  have  been  at  law  in 
the  court  below.  It  can  not,  therefore,  be  made  for  the  first  time  in 
this  court.  It  is  insisted  that  the  views  herein  expressed  are  antago- 
nistic to  what  was  said  in  Haynes  v.  Harris,  33  Iowa,  516.  To  some 
extent  this  maybe  true,  but  that  casf  i'j  r\p^r\y  rUcti'nornigi-iQKi^  froin 
this,  pecause  the  statutes  of  Indiana  do  not  provide  any  limitation  or 
vStatutory  bar  to  granting  letters  of  administratinn  Tt  appeared,  there- 
fore, in  that  ca.se,  that  administration  might  at  some  future  time  be 
granted.        "^^    The  petition  for  a  rehearing  is,  therefore,  overi'uled.} 

'   Distiiiirnishcd  in  Baird  v.  Brooks  (18S4),  65  Iowa,  40,  42. 


GALl'IN  V.  LAMB.  o37 

CxALPIN  r.  LA]\IB. 

SUPREMK  Court  oi'  Ohio,  Dkcembkr  Term,  1876. 

[29  O.  S.  529.] 

The  action  originally  was  brought  in  the  Court  of  Common  Pleas 
of  Trumbull  county  by  John  Lamb,  the  defendant  in  error,  against 
vSamuel  D.  Galpin,  the  plaintiff  in  error. 

The  petition  shows  the  following  facts  : 

The  plaintiff  below,  Lanib,  connucnced  an  action,  January  11,  1869,  in  the 
Coninion  Pleas  of  Trunibidl  county,  to  foreclose  a  mortgage  on  certain 
real  estate  in  said  county,  against  Asa  E.  Andrews,  the  mortgagor,  making 
R.  \V.  RatcliiT  and  the  plaintiff  in  error,  Galpin,  defendants.  Subsequently 
a  decree  was  rendered  by  said  court,  finding  the  liens  against  said  prop- 
ert}-  to  be,  ist,  in  favor  of  said  Ratcliff,  $1,908.50;  2d,  in  favor  of  said  Gal- 
pin, 15,854.11 ;  3d,  in  favor  of  said  Lamb,  18,738.60 ;  rendering  judgment 
accordingly,  and  ordering  that,  in  default  of  payment  of  said  sums  and 
costs  by  said  Andrews,  an  order  of  sale  issue  to  the  sheriff  to  sell  the  prop- 
erty. The  said  sums  being  wholly  unpaid  within  the  time  fixed  by  the 
judgment,  an  order  of  sale  was  duly  and  regularly  issued  to  the  sheriff, 
who,  proceeding  in  all  respects  according  to  law,  exposed  the  property  to 
sale  on  the  ist  day  of  January,  1S70,  when  said  Galpin  bid  and  offered  for 
the  purchase  of  said  property  the  sum  of  $11,505,  which  being  more  than 
two-thirds  the  appraised  value  of  the  same,  and  he  being  the  highest  and 
best  bidder,  the  sheriff  struck  off  and  sold  said  premises  to  him,  and  made 
due  return  of  the  same  on  said  order  of  sale  to  the  court. 

Galpin  failed  and  refused  to  pa}'  any  part  of  the  said  siim  of  $11,505  so 
bid  and  offered  by  him,  and  so  continuing  and  refusing  to  pay,  the  court 
at  the  February  term,  in  the  year  1S70,  made  in  said  cause  the  following 
order,  to  wit :  "  The  sheriff  having  returned  into  court  the  order  of  court 
heretofore  issued  herein  with  his  proceedings  thereon,  and  showing  a  sale 
to  Samuel  D.  Galpin,  in  all  respects  according  to  law,  and  it  appearing  to 
the  court  that  said  purchaser  has  failed  to  comply  with  the  terms  of  said 
sale  by  paying  the  amount  of  the  purchase  money  so  bid  by  him  for  said 
land,  said  sale  is  for  that  reason  not  confirmed,  and  it  is  ordered  that  the 
sheriff  proceed  to  sell  said  premises  as  heretofore  ordered  and  according 
to  law." 

Under  this  last  order  of  sale  the  sheriff  sold  said  premises  to  the  plain- 
tiff for  the  sum  of  $10,500,  which  was  all  that  could  be  obtained  therefor, 
and  which  was  all  that  said  premises  were  then  worth,  and  which  sale 
being  duly  and  regularly  made  and  returned  by  said  sheriff  to  said  court, 
was,  at  the  next  term  thereof,  to  wit,  at  the  June  term,  1870,  duly  and  regu- 
larly approved  and  confirmed  by  said  court,  and  said  purchase  monej-  being 
paid  by  the  purchaser,  said  sheriff,  by  order  of  said  court,  executed  and 
delivered  to  the  purchaser  a  good  and  sufficient  deed,  convejdng  to  him 
the  title  to  the  premises. 

By  reason  of  the  facts  aforesaid,  and  of  the  additional  interest  upon  the 
sum  so  due  said  Ratcliff  and  Galpin,  and  of  the  increased  costs  in  the  ac- 


538  IN  ^VHosE;  name  the  action  should  be  brought. 

tion,  all  of  -wliicli  were  required  to  be  paid  from  the  purchase  money  before 
auy  of  it  could  be  paid  upon  the  plaintiff's  claim,  and  which  amounted  in 
all  to  the  sum  of  $8,187.17,  which  amount  was  duly  paid  upon  the  amount 
found  due  and  costs,  from  said  purchase  money,  there  was  left  only  the 
sum  of  $2,313.17  applicable  to  the  payment  of  plaintiff's  claim,  which  sum 
was  paid  thereon,  and  which  was  over  $1,200  less  than  would  have  been 
paid  on  his  claim  but  for  the  refusal  of  said  Galpin  to  pay  said  purchase 
mone}'.  No  other  or  further  sum  has  been  paid  on  plaintiff  's  said  claim, 
and  he  can  not  collect  any  part  thereof  of  the  said  Andrews,  as  he  was  and 
is  entirely  insolvent,  and  has  been  adjudged  a  bankrupt  by  the  proper 
court,  and  obtained  a  discharge  from  all  his  debts  under  and  by  virtue  of 
the  bankrupt  law  of  the  United  States. 

To  this  petition  Galpin  demurred.  The  demurrer  was  overruled. 
He  then  answered,  and  the  case  was  tried  to  a  jurj^  resulting  in  a 
verdict  for  the  plaintiff  for  $1,005.  A.  motion  b}-  defendants  for  a  new 
trial  was  heard  and  overruled. 

The  case  was  taken  on  error  to  the  district  court,  and  by  that  court 
reser\'ed  for  decision  here. 

The  error  assigned  is  that  the  common  pleas  erred  in  overruling  the 
demurrer  to  the  petition. 

//.  H.  Moses  and  W.  T.  Spear,  for  plaintiff  in  error. 

George  M.  Tuttlc,  for  defendant  in  error.i 

White,  J. — It  has  been  ruled  in  many  cases  that  a  sheriff  may  main- 
tain an  action  in  his  official  capacity,  against  the  purchaser  of  real 
estate  at  judicial  sale,  to  recover  the  price  at  which  the  property  was 
struck  off  at  such  sale.- 

In  making  such  sale  according  to  the  commands  of  the  writ  under 
which  he  acts,  he  is  discharging  his  duty  as  an  officer  of  the  law.  As 
is  said  in  Armstrong  v.  Vroman,  1 1  Minn.  220,  until  the  money  realized 
from  the  sale  of  the  land  comes  into  the  hands  of  the  sheriff,  the  judg- 
ment creditor  has  no  legal  interest  in  it.  It  is  the  sheriff's  duty  to 
miake  the  money  as  commanded  by  the  writ.  For  this  purpose  he  has 
the  right  to  enforce  the  collection  by  suit,  if  necessary-,  both  for  the 
sake  of  securing  his  own  fees  and  that  he  may  have  funds  wherewith 
to  respond  to  the  judgment  creditor. 

The  contract  of  purchase  is  made  with  the  officer  as  representing 
all  the  interests  involved  in  the  suit  in  which  the  judgment  or  decree 
of  sale  is  rendered.  He  and  the  purchaser  are  the  only  parties  to  the 
contract  of  purchase ;  and  he  alone  can  maintain  an  action  against 
the  purchaser  to  recover  the  purchase  money. 

The  parties  to  the  judgment  or  decree  hav^e  different  interests  and 
stand  in  different  relations  to  the  property,  some  holding  the  relation 

*  The  arguments  are  omitted. 

*  Citing,  Ennis  v.  Waller,  3  Blackf.  472;  Hand  et.  al.  v.  Grant,  Sheriff,  5  S.  &  M.  50S; 
Chappell,  Sheriff,  v.  Daun,  21  Barb.  17;  Armstrong  z/.  Vronian,  11  Minn.  220;  Gwynne  on 
Sheriffs.  355. 

Compare  also  the  opinion  of  Pearson,  C.  J.,  in  McKee,  Sheriff,  v.  Lineberger  (1S73),  69 
N.  C.  239,  240.  —Ed. 


GALPIN  V.  LAMB.  539 

of  debtor  and  others  that  of  the  creditor.  But  however  numerous  the 
parties  or  diverse  their  interests,  the  officer  represents  them  all,  and 
none  of  the  parties  stand  in  such  relation  to  the  contract  of  the  pur- 
chaser as  to  entitle  them  to  maintain  an  action  on  it. 

In  the  first  place,  they  are  not  parties  to  the  contract;  in  the  second, 
they  are  not  united  in  interest;  and  in  the  third  place,  if  each  could 
maintain  an  action,  the  purchaser  would  be  subject  to  a  multiplicity  of 
suits  on  a  legal  cause  of  action  in  which  he  is  entitled  to  a  jury  trial. 

Nor  is  the  question  affected  by  the  insolvency  or  bankruptcy  of  the 
judgment  debtor.  Although  insolvent,  he  is  still  interested  in  having 
the  judgment  paid;  and  if  a  bankrupt,  his  assignee  has  such  interest, 
for,  to  the  extent  that  the  judgment  is  paid,  the  claims  against  the 
assets  in  the  hands  of  the  assignee  are  diminished. 

The  action  is  supposed  to  be  maintainable  by  the  plaintiff  below, 
Lamb,  on  the  ground  that  if  the  first  sale  had  been  completed,  the  pur- 
chase money  woiild  still  have  been  insufiicient  to  discharge  his  lien, 
and  that  the  whole  of  the  purchase  monej'  would  have  gone  to  him 
after  pa5dng  the  prior  incumbrances. 

But  that  this  ground  is  untenable  was  expressty  decided  in  Adams 
V.  Adams,  4  Watts,  no.  The  court  in  that  case  saj' :  "The  sheriff,  in 
making  the  contract  of  sale  with  James  Adams  (the  purchaser),  was 
not  acting  as  the  agent  of  the  plaintiff,  nor  j^et  of  any  one  else.  He  is 
considered  the  principal  himself  in  such  cases,  and  the  legal,  as  well 
as  the  real  part}-  making  the  contract  of  sale.  Although  it  be  true  that 
he  acts  in  the  character  of  a  trustee,  j-et  it  must  be  borne  in  mind  that 
it  is  as  an  officer  of  the  law  that  he  does  so ;  and  that  it  is  from  the 
law  he  derives  all  his  power  and  authority,  and  in  sales  of  property 
made  by  him,  as  sheriff,  under  this  authorit}-,  he  alone  has  the  right 
to  receive  the  monej^  arising  therefrom,  and  is  responsible  for  the  legal 
appropriation  of  it,  unless  it  is  brought  by  him  into  court  for  that  pur- 
pose. It  would  inevitably  produce  great  confusion  and  clashing  of 
suits  to  permit  other,  persons  besides  the  sheriff,  in  their  own  names, 
to  maintain  suits  against  the  sheriff's  vendees  for  breaches  of  their  con- 
tracts made  with  him.  It  would  also  be  inconsistent  with  every  prin- 
ciple of  analogy  in  the  law.  The  court  were  right,  then,  in  directing 
the  jury  that  the  plaintiff  was  not  entitled  to  recover  the  money  in 
'question,  because  there  was  no  privit}'  of  contract  between  him  and 
the  intestate  of  the  defendants.  There  was  none,  most  certainl}-.  either 
in  fact  or  in  law." 

The  same  doctrine  was  subsequentlj-  affirmed  in  Gaskell  v.  Morris, 
7  Watts  &  Serg.  32.  And  it  may  be  remarked  in  regard  to  these  deci- 
sions of  the  supreme  court  of  Penns3-lvania,  that  in  that  state  there  is 
no  separate  chancery  jurisdiction,  but  that  law  and  equit}^  are  admin- 
istered there  as  here  in  the  same  forum. 

The  case  of  Mayer  v.  Wick,  1 5  Ohio  St.  54S,  is  not  inconsistent  with 
the  foregoing  decisions.    In  that  case  the  sale  had  been  confirmed,  and 


540  IX  \vHOSi5  name;  the  action  should  be;  brought. 

the  officer  had  thus  become  responsible  for  the  purchase  money.  He 
had  tendered  the  deed  to  the  purchaser,  and  assigned  his  right  of 
action  to  the  plaintiff  in  the  decree  under  which  the  property  was  sold, 
and  the  latter  was  allowed  to  maintain  the  action  for  the  purchase 
money. 

The  objection  to  the  plaintiff's  maintaining  the  action  is  not  waived, 
as  is  claimed  in  the  argument,  by  the  failure  to  demur,  on  the  ground 
of  a  defect  of  parties  plaintiff  The  objection  is  not  that  there  is  a 
defect  of  parties,  but  that  no  right  of  action  is  shown  to  exist  in  the 
plaintiff. 

The  code  does  not  give  such  right  of  action.  The  rules  of  the  code 
in  respect  to  parties  are  substantially  the  same  as  those  which  pre- 
vailed in  equity  before  the  adoption  of  the  code.  Where  no  right  of 
action  existed  in  a  part3'  either  at  law  or  in  equit}',  the  code  does  not 
create  one.  Whether,  if  the  sheriff  should,  by  reason  of  collusion 
with  the  purchaser,  refuse  to  bring  the  action,  or,  on  being  indemni- 
fied, should  refuse,  in  a  proper  case,  to  do  so,  the  parties  in  interest 
might  not  maintain  a  suit  in  equity  against  the  sheriff  and  the  pur- 
chaser, we  need  not  now  inquire;  for  no  such  case  is  made  in  the 
petition. 

It  is  claimed  by  the  plaintiff  in  error  that  the  law  by  which  a  pur- 
chaser who  fails  to  pay  the  purchase  money  is  subject  to  the  loss  re- 
sulting from  a  resale  of  the  property,  is  not  applicable  to  real  estate, 
especially  not  to  such  property  sold  at  judicial  sale. 

In  Indiana  the  subject  is  regulated  by  statute,  and  the  purchaser 
may  be  proceeded  against  by  motion  and  charged  with  the  loss  re- 
sulting from  the  resale. i  The  same  is  true  in  Marjdand,  and,  per- 
haps, in  some  of  the  other  states. 

In  this  state  we  have  no  statute  on  the  subject,  and  whether  the 
rule  adopted  in  Pennsylvania  prevails  here  we  need  not  now  definite- 
ly decide.  Assuming  for  the  purposes  of  the  present  ca.se  that  it  does, 
there  is  another  fatal  defect  in  the  case  of  the  plaintiff  below. 

Before  the  purchaser  could  be  charged  with  a  loss  resulting  from 
a  resale,  he  ought  to  have  been  advised  that  the  second  sale  was  to  be 
made  at  his  risk. 

No  such  notice  was  given  by  rule  of  court  or  otherwise.  The  pur- 
chaser might  well  have  supposed  from  the  order  of  the  court  refusing 
to  confirm  the  sale,  and  directing  the  property  to  be  again  sold  with- 
out qualification  or  condition,  that  the  finst  sale  had  been  abandoned, 
and  that  all  parties  had  elected  to  take  the  chances  of  a  .second  sale. 

We  are  of  opinion,  therefore,  that  the  court  erred  in  overruling  the 
demurrer  to  the  petition. 

The  judgment  is  reversed,  the  demurrer  to  the  uetition  sustained, 
and  the  petition  dismissed. 

[   »  Citing,  Williams  v.  Lines,  7  Blackf.  46;  Laverty  v.  Chaniberlaiu,  lb.  556. 


GREER  V.  HOWARD.  541 

GREER   :•.  HOWARD. 

SuPRE:irE  Court  Co.mmissiox  (^\•  Ohio,  January  Term,  1885. 

[41  O.  S.  591.] 

The  plaintiffs  in  error,  Greer  &  King,  on  jNIarch  29th,  1878,  re- 
covered a  judgment  against  D.  Carroll  &  Son,  in  the  superior  court 
of  Montgomery  County,  for  the  sum  of  $332  and  $28  costs.  They 
caused  execution  to  be  immediately  issued  on  this  judgment  to  the 
sheriff  of  the  county,  who  levied  upon  the  property  of  Carroll  &  Son. 
While  the  sheriff  held  the  property  under  his  levy,  George  M.  Young, 
as  assignee  of  Carroll  &  Son,  under  an  assignment  for  the  benefit  of 
creditors,  replevied  the  property  from  him  and  gave  a  bond  in  re- 
plevin as  required  by  law,  with  John  Howard  and  O.  INI.  Gottschall  as 
sureties  thereon. 

Before  the  action  in  replevin  came  to  trial,  the  plaintiff,  George  M. 
Young,  the  assignee,  died,  and  the  action  was  revived  in  the  name  of 
Thomas  C.  Roseberry,  who  was  duly  appointed  as  the  successor  of 
Young,  the  assignee. 

On  the  trial  of  the  action  of  replevin  the  plaintiff,  the  assignee,  failed 
and  the  sheriff  recovered  a  judgment  against  him  for  the  value  of  the 
property  taken  in  replevin.  The  plaintiffs,  Greer  &  King,  in  the 
judgment  upon  which  the  execution  issued  under  which  the  property 
Avas  taken  hy  the  sheriff,  were  not  substituted  for  the  sheriff  in  the 
suit  in  replevin.  Nor  did  the  sheriff  assign  to  them  the  replevin  bond 
or  the  judgment  recovered  in  the  action.  Upon  this  state  of  fact, 
Greer  &  King  brought  their  action  upon  the  replevin  bond  against 
Howard  and  Gottschall  and  recovered  judgment  in  the  common  pleas, 
which  jvidgment  was  reversed  by  the  district  court. 

The  proceeding  here  is  to  reverse  this  judgment  of  the  district 
court. 

Iddings  &  Iddings,  for  plaintiffs  in  error. 

Young  &  Young,  for  defendants  in  error.i 

McCauley,  J. — - 

The  action  on  the  bond,  however,  was  brought  by  the  plaintiffs  in 
the  execution  under  which  the  sheriff  levied  on  the  property,  without 
alleging  an  assignment  of  the  bond  to  them  by  the  sheriff,  or  an 
assignment  to  them  of  the  judgment  in  replevin,  and  without  alleging 
any  reason  why  they  should  bring  the  action,  such  as  the  refusal  or 
neglect  of  the  sheriff  to  enforce  the  bond  or  to  assign  it  or  the  judg- 
ment to  them.  They  might  clearly  maintain  the  action  if  the  bond 
had  been  assigned  to  them  or  if  the  judgment  had  been    assigned, 

>  The  arg-mnents  are  omitted.    ^ 

-  After  holding  that  the  revivor  was  properly  made,  and  that  the  judgmeut  was  one 
for  which  the  sureties  on  the  replevin  bond  were  liable. 


542  IN  WHOSE  NAilE  THE  ACTION  SHOULD  EE  lillOVCillT 

which  would  have  effected  an  assignment  Oi^the  bond  as  an  incident  to 
it.  Or  if  the  sheriff  had  refused  or  neglected  to  assign  either  the  judg- 
ment or  the  bond,  or  to  enforce  the  bond,  in  the  latter  case  making  the 
sheriff  a  party.  This  would  not  be  their  only  remedy,  but  this  one 
they  would  clearly  have  under  the  circumstances  supposed.  The 
plaintiffs  in  the  common  pleas  failed  to  set  forth  a  state  of  fact  sufifi- 
cient  to  entitle  them  to  a  judgment  on  the  bond.  Their  petition  was 
demurred  to  and  the  demurrer  overruled.  The  district  court  reversed 
the  judgment  of  the  common  pleas  for  the  error  of  that  court  in  over- 
ruling the  demurrer.  The  district  court  in  this  reversal  was  clearly 
j-[cr}ii  Judgmejit  affirmed. 


IX  \VliO.S]-;  -NAMK  TIIU  ACTION  vSlIOLI.U  JJIi  BROUGHT. 


543 


E.      Jl^/u-u  tin-  aclioit  may  be  brought  in  the  name  of  07ie  who  is  not  a        ^ 
real  party  tn  interest. 

I.      A    TKUSTEE    OF   AN    EXPRESS   TRUvST;     A   PERSON   WITH   WHOM   OR 

IN     WHOSE     NAME     A     CONTRACT     IS     MADE     FOR 

THE    BENI'.FIT    OF    ANOTHER. 

NOTE. 

The  Statutory  provisions  here  have  two  forms.  By  the  terms  of 
the  New  York  Code,  as  amended  in  1851  {i  113),  the  scope  of  the 
phrase  "trustee  of  an  express  trust"  was  extended,  as  respects  the 
Taw'or'parties  to  actions,  so  as  to  include  "a  person  with  whom  or  in 
wEose  name  a  contract  is  made  for  the  benefit  of  another."i  In  some 
c63es,  however,  "  the  person  with  whom  or  in  whose  name  a  contract 
is  made  for  the  benefit  of  another "  is  not  thus  brought  within  the 
class  of  trustees  of  express  trusts,  but  is  coordinated  with  them  and 
with  executors  and  administrators.-  The  distinction,  while  important 
in  the  law  of  trusts,  is  not  carefully  regarded  by  the  cases  on  the  law 
of  parties  plaintiff;  and  the  doctrine  appears  to  be  practically  the  \ 
same  under  the  few  codes  which  observe  the  distinction  as  under  the 
great  majority  which  disregard  it. 

In  either  case  the  general  doctrine  on  the  subject  has  to  do  with 
several  markedly  different  conditions,  according  as  the  plaintiff  (i)_^ 
has  been  directly  declared  a  trustee  with  respect  to  certain  propert}',  / 
persons,  and  purposes ;  or,  {2^  has  merely  contracted  in  his  own  namel 
for  the  benefit  of  a  disclosed  principal ;  or,  ^]  has  merely  contracted  \ 
in  his  own  name  for  the  benefit  of  an  undisclosed  principal;  or,  (4)  is  / 
merely  an  agent  who,  with  no  contract  in  his  own  name  for  the  1 
benefit  of  his  principal,  attempts  in  his  own  name  to  enforce  a  right  ' 
which  has  accrued  to  his  principal. 

•  See  the  forms  of  the  enactment  in  New  York,  Missouri,  California,  Indiana,  Minne- 
sota, Oregon,  Wisconsin,  Kansas,  Nevada,  North  Dakota,  South  Dakota,  Idaho,  Montana, 
North  Carolina,  South  Carolina,  Utah,  Colorado,  and  New  Mexico,  given  ante^  pp. 
tSS-192. 

=  See  the  forms  of  the  enactment  in  Kentucky,  Iowa,  Ohio,  Washington,  Arkansas, 
Wyoming,  and  Oklahoma,  given  ante,  pp.  189-192. 

In  the  late  code  of  Connecticut  the  enactment  has  more  nearly  the  form  of  the  enact- 
ment in  the  New  York  code  of  1849;  compare,  ante,  pp.  iSS  and  192.  For  a  construction 
of  this  early  New  York  provision,  see  Grinnell  V.  Sckviidt  (1S50),  2  Sandf.  705,  710: 
"  Mercantile  agents  and  factors  who,  according  to  the  usage  and  custom  of  merchants,  do 
business  in  their  own  names,  but  for  other  parties,  are  trustees  in  the  strict  sense  of  the 
term  [as  used  in  %  113  of  the  New  York  code,  before  its  amendment  in  1S51.]  .  .  The 
trust,  though  not  created  by  a  formal  deed  or  instrument,  yet  appears  upon  the  face  of 
every  order  contained  in  the  correspondence  of  their  principals,  in  pursuance  of  which 
they  act,  and  may  therefore  well  enough  be  called  an  express  trust." — Per  Mason,  J., 
delivering  the  opinion  of  the  Superior  Court  of  the  City  of  New  York.  —Ed. 


544  IN  WHOSE  NAME  THE  ACTIOX  SHOULD  BE  BROUGHT. 

GARDNER  7'.  ARMSTRONG. 

Supreme  Court  of  Missouri,  ^Iarch  Term,  1S62. 

[31  Jl/o.  535.] 

Gardner,  as  trustee  under  a  deed  of  trust  made  by  Adela  Douthett 
to  secure  the  payment  of  certain  notes  therein  mentioned,  sued  Arm- 
strono-  to  recover  damages  occasioned  by  the  refusal  of  the  latter  to 
comply  with  his  purchase  of  the  premises  described  in  the  deed. 

The  petition  alleges  that  Adela  Douthett  made  the  deed  of  trust  to 
plaintiff,  etc. ;  that  plaintiff  sold  the  property  at  public  vendue,  for 
cash;  that  defendant  purchased  at  the  price  of  $8,000;  that  plaintiff 
tendered  defendant  a  deed;  that  defendant  refused  to  accept  the  deed 
and  pay  the  price  aforesaid;  that  plaintiff  thereupon  advertised  and 
resold  the  land,  for  the  sum  of  $4,500.  Judgment  was  asked  for 
$3,500,  the  difference  between  the  prices  bid  at  the  two  sales. 

On   the    trial,   the   defendant  offered   no  evidence;    judgment  was 
given  for  plaintiff  in  the  amount  asked.      A  motion  in  arrest  of  judg- 
ment being  denied,  the  defendant  appealed.i 
Krian  &  Harding,  for  appellants. 
/.  D.  Coalter  and  A.  Hamilton,  for  respondent- 

Drydex,  J. — The  point  raised  by  the  motion  in  arrest  of  judgment 
is  based  upon  the  ground  that  "  the  petition  does  not  .state  facts  suffi- 
cient to  constitute  a  cause  of  action."  It  is  urged  in  objection  to  the 
petition,  that,  as  the  plaintiff  has  no  interest  in  the  trust  debt,  the 
injur}'  complained  of  was  not  an  injury  to  him,  but  to  the  trust 
creditors,  and  therefore  that  he  does  not  show  in  himself  a  cause  of 
action. 

The  objection  assumes  what  is  far  from  being  true,  that  the  bene- 
ficial interest  in  a  contract  determines  the  question  who  is  to  sue  for 
a  breach  of  it.  The  law  regards  a  person  to  whom  a  promise  is  made, 
and  with  whom  it  is  to  be  performed,  as  the  one  having  the  legal 
interest  in  the  contract;  and  in  actions  ex  contractu  at  common  law, 
it  is  a  fundamental  rule  of  pleading  that  "the  action  must  be  brought 
in  the  name  of  the  party  in  whom  the  legal  interest  in  such  contract 
is  vested,"  without  reference  to  who  has  the  beneficial  interest  in  the 
same,     i  Cliittj',  Pleadings,  pp.  2  and  3. 

This  rule,  in  its  application  to  cases  like  the  present,  is  not  thought 
to  be  changed  by  our  statute  relating  to  parties  to  actions.  R.  C. 
1855,  p.  1217,  I  2,  Art.  2. 

In  the  argument  at  bar  there  was  much  discussion  of  the  question 
whether  the  plaintiff,  as  to  the  damages  sought  to  be  recovered,  is 
trustee  for  the  trust  creditors  or  for  the  trust  debtors,  or  for  either,  or 

1  The  statement  of  facts  has  been  abridged. 
'The  arjjuments  are  omitted. 


GARDNER  :'.  ARMSTRONG.  545 

for  both.  If  we  are  right  in  the  view  we  have,  taken,  it  relieves  us 
i)f  the  consideration  of  the  question  until  the  controversy  shall  arise 
between  those  who  alone  have  an  interest  in  its  determination.  It  is 
enough  that  at  law  the  defendant  is  answerable  to  the  plaintiff,  and  to 
him  only,  for  the  alleged  breach  of  contract.  He  has  no  more  reason 
to  be  concerned  about  what  may  become  of  the  damages  that  may  be 
recovered  than  he  should  have  had  about  what  should  have  been 
done  with  the  price  bid  for  the  land  had  he  paid  it.i     . 

The  other  judges  concurring,  the  judgment  is  affirmed,  with  ten 
percent  damages. - 

'  I';irt  of  the  opinion,  on  other  points,  is  omitted. 

2  See  :ilso  Beck  v.  Haas  (iSSS),  31  Mo.  App.  180.  The  action  was  upon  a  promissory  note. 
Said  the  Court,  per  Thompson,  J.:  "The  note  sued  on  was  made  payable  to  the  plaintifi 
as  trustee  for  his  wife,  now  deceased.  It  appears  from  the  evidence  that  the  plaintiff's 
wife  died  in  iSSi,  and  that  no  letters  of  administration  had  ever  been  taken  out  upon  her 
estate.  It  is  therefore  urg-ed  that  the  action  is  not  well  brought,  but  that  it  would  be 
properly  brought  in  the  name  of  an  administrator  of  Mrs.  Beck,  deceased. 

"This  point  is  clearly  not  well  taken.  In  the  first  place,  no  defence  other  than  the 
statute  of  limitations  was  pleaded.  In  the  second  place,  the  plaintiff  was  the  legal  holder 
of  this  note,  and  whether  he  held  it  in  a  trust  capacity  or  not  is  immaterial,  so  far  as  the 
rights  of  the  defendant  are  concerned.  As  the  holder  of  it,  he  is  the  trustee  of  an  express 
trust,  and  the  action  is  properly  brought  in  his  name,  under  the  statute.  Rev.  Stat.,  Sec. 
3463.  With  the  applicatiim  of  the  trust  fund  after  he  collects  it,  the  defendant  has  nothing 
to  do." 

Compare  Nelson  v.  Eaton  (1S5S),  7  Abb.  Pr.  305,  307:  "  This  action  was  brought  by  the 
plaintiffs  as  trustees.  In  their  complaint  they  set  forth  the  trust  instrument  or  agreement, 
by  which  they  were  not  only  created  such  trustees,  but  under  which  the  note  on  which  the 
suit  was  brought,  with  other  notes,  came  into  their  hands,  as  such  trustees,  as  collateral 
security  for  the  payment  of  certain  notes  of  the  parties,  executing  the  trust  instrument; 
and  by  the  trust  instrument  it  appears  that  the  plaintiffs  had  a  right  to  sell  the  said 
collaterals  at  public  or  private  sale  at  their  option,  and  without  advertising  the  same,  or 
otherwise  giving  any  notice. 

"  The  trust  instrument,  expressly  specifying  the  terms  on  which  the  note  on  which 
this  suit  is  brought,  came  into  the  plaintiffs' hands  as  such  trustees,  and  expressly  giving 
them  the  right  to  sell,  etc.,  but  not  to  sue,  the  plaintiffs  had  no  right  to  bring  that  action 
as  such  trustees. 

"There  is  no  room  for  presumptions  arising  from  their  being  the  holders  of  the  note. 
They  themselves  set  out  the  manner  in  which  they  hold  it  and  their  rights  over  it.  They 
had  a  right  to  sell  it  without  advertising  it,  or  otherwise  giving  notice;  but  with  the 
express  agreement  before  us  there  is  no  place  for  a  presumption  that  they  had  a  right  to 
sue  it  as  the  owners  and  holders. 

"  I  tliink  the  judgment  of  the  Court  below,  overruling  the  defendant's  demurrer  to  the 
complaint,  should  be  reversed,  and  that  there  sliould  be  judgment  for  the  defendant  on 
the  demurrer,  with  costs." — Per  Sutherland,  J.  — Ed. 


546  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

COXSIDERAXT  :-.  BRISBANE. 
Court  oe  Appeals  of  New  York,  December  Term,  i860. 

[22  a:  }'.  3S9.] 

Appeal  from  a  judgment  of  the  Superior  Court  of  New  York  City^ 
sustaining  a  demurrer  to  a  complaint.  The  complaint  was  in  these 
words : 

"  The  plaintiff,  for  an  amended  complaint  in  the  above  entitled  action, 
by  Francis  H.  Dykers,  his  attorney,  complains  of  the  defendant,  and 
avers — 

"First.  That  the  said  defendant,  on  or  about  the  first  day  of  March, 
1855,  at  the  city  of  New  York,  applied  to  the  said  plaintiff,  acting  as  the 
executive  agent,  and  as  such  agent  authorized  to  receive  subscriptions  to 
the  stock  of  the  European  and  American  Colonization  Society  in  Texas,  a 
corporation  duly  created  by  and  existing  under  the  laws  of  Belgium,  in 
Europe,  and  of  which  said  corporation  the  business  name  is  Bureau, 
Guillon,  Godin  &  Co.,  and  authorized  said  plaintiff  to  subscribe  the  name 
of  said  defendant  in  the  books  of  the  said  company,  as  an  original  sub- 
scriber for  the  stock  of  said  company,  known  as  premium  stock,  to  the 
amount  of  $10,000,  which  said  plaintiff  then  and  there  undertook  and 
faithfully  promised  to  do. 

"Second.  That  the  said  defendant  then  and  there  made  and  executed, 
in  writing,  two  subscription  notes,  or  contracts,  for  the  payment,  in  the 
aggregate  of  the  sum  of  f  10,000,  for  the  shares  so  taken  by  the  said  de- 
fendant in  said  company,  and  delivered  them  to  the  plaintiff,  which  said 
notes  were  in  the  words  and  figures  following,  to  wit : 

"(I) 

"New  York,  March  ist,  1S55. 

"  $5,000. 

"On  the  first  day  of  July,  1S56,  I  promise  to  pay  Y.  Considerant,  as 
executive  agent  of  the  company,  Bureau,  Guillon,  Godin  &  Co.,  the  sum 
of  five  thousand  dollars,  for  which  I  am  to  receive  stock  of  said  company, 
known  as  premium  stock  (^actions  a  prime),  to  the  amount  of  $5,000,  value 
received.  A.  Brisbane. 

"(2) 

"New  York,  March  ist,  1855. 
"  $5,000. 

"  On  the  first  day  of  September,  1856,  I  promise  to  pay  to  V.  Consider- 
ant, as  executive  agent  of  the  company.  Bureau,  Guillon,  Godin  &  Co.,  the 
sum  of  $5,000,  for  which  I  am  to  receive  stock  of  said  company,  known  as 
premium  stock  {actions  a  prime),  to  the  amount  of  $5,000. 

"  A.  Brisbane. 

"Third.  That  said  defendant  therefore  delivered  both  of  said  notes  to 
the  plaintiff. 

"Fourth.  That  said  plaintiff,  acting  as  such  executive  agent,  and  under 
and  by  virtue  of  the  authority  vested  in  him  by  said  defendant  as  afore- 
said, duly  caused  the  name  of  said  defendant  to  be  entered  on  the  books 


CONSIDKUANT  :'.  URISIJAXIC.  047 

of  said  conipaii}-,  al  IJrussc-ls,  in  Belgium,  for  the  amount  of  stock  so  sul)- 
scribed  for  by  him,  and  caused  certificates,  in  the  usual  form  issued  by 
said  company,  to  be  issued  in  the  name  of  said  defendant. 

"Fi/ih.  That  this  plaintiff  has  always  been  ready  and  willing  to  deliver 
to  the  defendant  the  certif.cates  of  said  company  of  the  share  or  interest, 
so  subscribed  for  by  the  defendant  as  aforesaid,  or  intended  so  to  be  (and, 
on  the  maturity  of  each  of  said  notes,  caused  the  same  to  be  tendered  to 
the  said  defendant),  on  the  payment  by  the  defendant  of  the  sum  agreed 
,  to  be  paid  by  him  for  the  same,  and  said  plaintiff  is  still  ready  and 
willing  so  to  do,  but  said  defendant  has  hitherto  wholly  neglected 
and  refused  to  pay  the  sum  so  agreed  to  be  paid  by  him  as  aforesaid,  and 
still  wholly  neglects  and  refuses  so  to  do,  to  the  damage  of  the  plaintiff 
of  Si 0,000  and  upwards. 

"Wherefore,  said  plaintiff  demands  judgment  against  said  defendant 
for  the  sum  of  $10,000,  with  interest  on  fo.ooo  from  the  3d  day  of  July, 
1S56,  and  interest  on  $5,000  from  the  4th  day  of  September,  1856,  besides 
the  costs  of  this  action." ^ 

To  this  complaint  the  defendant  demurred,  on  the  ground  that  it 
did  not  state  facts  suflBcient  to  constitute  a  cause  of  action. 

The  Superior  Court  at  Special  Term  held  the  complaint  sufficient/ 
and  overruled  the  demurrer.     On  appeal,  the  General  Term  su.stained' 
the  demurrer,  on  the  ground  that  the  action  could  not  be  maintained 
b}'  the  plaintiff;  and  the  plaintiff  appealed. 

Francis  H.  Dykers  and  John  Slosson,  for  the  appellant. 

William  B.  Leeds,  for  the  respondent. 

Wright,  J. — It  is  conceded,  as  it  must  be,  that  the  complaint  states 
a  cause  of  action  in  the  corporation,  for  whom  the  plaintiff  acted  as 
executive  agent,  against  the  defendant.  The  defendant  .subscribed  for 
§10,000  of  the  stock  of  the  company,  through  its  agent,  and  agreed  and 
promised  in  writing  to  pay  $5,000  of  the  sum  on  the  ist  Jul}-,  1856,  and 
the  remaining  $5,000  on  the  ist  vSeptember,  1856.  The  company,  and 
not  the  plaintiff,  was  the  party  beneficially  interested,  and  the  duty,  or 
obligation,  to  issue  the  stock  (which  was  the  sole  consideration  for 
the  defendant's  agreement  and  promise),  rested  upon,  and  could  only 
be  performed  by,  such  company.  Had  the  corporation,  on  the  ist  of 
July,  or  the  ist  of  September,  refused  to  issue  the  stock,  no  action 
could  have  been  maintained  by  anybody  on  the  instruments  executed 
on  the  ist  March,  1855,  by  the  defendant  and  set  out  in  the  com- 
plaint. On  the  other  hand,  the  defendant's  remedy  would  be  against 
the  corporation,  and  not  against  the  person  professedly  acting  as  its 
agent.  Thus  the  corporation  had  the  exclusive  beneficial  interest  in 
the  subject  of  the  defendant's  promi.ses.  The  plaintiff  was  not  per- 
sonally bound  b}'  the  contract;  and  the  corporation  was  bound,  unless 
the  contract  was  a  nudum  pactum.     The  averments  of  the  complaint 

1  The  copy  of  the  complaint  is  from  Browne  and  Cook's  revised  edition  of  the  New 
York  Reports.  —Ed. 


tl^ 


548 


IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 


exclude  any  other  construction  than  that  the  plaintiff  acted  in  the 
transaction  as  the  agent  of  the  company;  and  if  we  look  exclusively 
to  the  subscription  notes,  and  interpret  the  defendant's  promises  from 
what  appears  on  the  face  thereof,  it  is  clear  that  the  official  character 
of  the  plaintiff  was  alone  in  the  mind  of  the  promisor  and  contem- 
plated in  the  promise,  and  that  such  promises  were  not  to  him 
personally,  but  in  his  official  or  representative  capacit}'. 

The  facts  stated,  therefore,  in  the  complaint,  showed  the  corporation 
and  the  defendant  to  be  the  parties  in  whom  the  interest  in  the  con- 
tract vested,  and  the  plaintiff,  who  made  the  contract,  having  no 
beneficial  interest  in  it,  nor  being  bound  by  it,  nor  furnishing  an}- 
part  of  the  consideration  for  it.  The  single  question  is,  whether  the 
plaintiff  may  maintain  an  action  for  the  breach  of  it. 

The  Code  provides  that  "  everj'  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest,"  except  that,  "  an  executor  or  ad- 
ministrator, a  trustee  of  an  express  trust,  or  a  person  expressl}' 
authorized  by  statute,  may  sue  without  joining  with  him  the  person 
for  whose  benefit  the  action  is  prosecuted."  (Code,  22  iii,  113.) 
And  it  is  declared,  that  "  a  trustee  of  an  express  trust,  within  the 
meaning  of  the  section,  shall  be  construed  to  include  a  person  with 
whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of 
another.     (^  ii3-) 

It  is  plain  that  the  plaintiff  is  not  the  real  part}-  in  interest;  but 
the  question  remains,  Is  he  "  a  trustee  of  an  express  trust,"  within 
the  definition  of  that  term  in  section  113  of  the  Code?  Is  he  "a 
person  with  whom,  or  in  whose  name,  a  contract  is  made  for  the 
benefit  of  another  ?  "  As  such,  he  would  be  authorized  to  sue  on  the 
subscription  notes  in  his  own  name,  notwithstanding  the  beneficial 
interest  was  in  his  principals. 

The  subscription  notes,  or  contracts,  purported  on  their  face  to  be 
made  with  the  plaintiff  as  executive  agent  of  the  foreign  compaii}', 
and  the  promise  was  to  pa}-  to  him,  as  such  agent,  the  sums  of  mone\- 
named  therein,  for  which  the  defendant  was  to  receive  the  stock  of 
the  company.  They  were  not  contracts,  therefore,  directl}^  with  the 
principals,  with  a  promise  to  pay  the  plaintiff  for  their  benefit.  On 
such  a  case,  no  action  could  be  maintained  by  the  promisee,  though 
the  promise  mighf  supjport  an  action  by  the  company.  They  were, 
rather,  expfiess^coiitracts  to  pay  jhe  plaintiff  for  the  use  of,  and  on  a 
consideration  movin§:.ixofii-,  the  companj'. 

Before  the  Code,  I  think  a  contract  of  this  character  would  have 
raised  such  a  legal  interest,  by  way  of  trust,  as  that  an  action  might 
have  been  maintained  bj-  the  plaintiff.  In  cases  of  written  contracts, 
the  right  of  action  followed_Jli£_  legal  title.  This  title  was  in  the 
party  entitled  to  the  performance  of  the  contract;  and  the  part}- 
entitled  in  law  was  the  one  to  whom,  b}-  its  terms,  it  was  to  be  per- 
formed, or  his  assignee,  if  assignable.     Written  express  contracts,  by 


COXSIDr-:RAXT  C.  BRISBAXK.  549 

or  with  agents  contracting  in  their  own  names,  with  or  without  a  de- 
scription of  agency,  were  not  exceptions  to  the  rule.  Such  a  contract 
was  with  an  agent,  and  in  his  name,  when  executed  by  him  or  to  him 
in  his  individual  name,  without  expressing  the  agency,  though  the 
other  party  knew  he  was  acting  as  agent  in  the  transaction,  and  con- 
tracted with  him  in  that  capacity;  and  it  was  equally  with  him,  and 
in  his  name,  though  he  was  described  as  agent  on  its  face,  when 
negotiated  with  him,  and  by  its  terms  to  be  performed  by  or  to  him. 
The  words  expressive  of  the  agency  might,  if  necessary  for  the  con- 
venience of  the  remedy,  be  rejected  as  a  mere  description  of  the 
person.  The  payee  of  a  note,  although  received  by  him  as  an  agent 
for  another,  might  sue  upon  it  in  his  own  name.  Biiffum  v.  Chadzvick, 
8  Mass.  103. 

So  when  a  bill  of  exchange  was  endorsed  to  "  S.  S.  F.,  cashier,"  he 
might  maintain  an  action  upon  the  bill  in  his  own  name,  notwith- 
standing he  might  be  obliged  to  account  to  the  bank  of  which  he  was 
cashier.     Fairfield  v.  Adavis,  i6  Pick.  381. 

In  Sargent  v.  Morris  [1820],  3  Barn.  &  Aid.  2-j-j,  Bayley,  J.,  stated  the 
rule  as  follows  :  "  If  an  agent  acts  for  me  and  on  my  behalf,  but  in  his 
own  name,  then,  inasmuch  as  he  is  the  person  with  whom  the 
contract  is  made,  it  is  no  answer  to  an  action  in  his  name  to  say  that 
he  is  mereh^  an  agent,  unless  j-ou  can  also  show  that  he  is  prohibited 
from  carrying  on  that  action  bj^  the  person  on  whose  behalf  the 
contract  was  made."  When  there  was  an  express  promise  in  writing 
to  an  agent,  the  action  might  be  in  the  name  of  the  agent.  To  hold 
otherwise,  as  was  said  by  Bronsox,  J.,  would  be  to  declare  the 
contract  nugatory-,  except  where  it  was  in  the  form  of  negotiable 
paper  which  could  be  transferred  to  the  principal,  so  as  to  enable  him 
to  sue  in  his  own  name.     Harp  v.  Osgood,  2  Hill,  216. 

In  the  present  case,  before  the  change  of  the  rule,  I  can  not  well 
perceive  how  the  companj^  who  had  the  exclusive  beneficial  interest, 
whilst  the  express  promise  was  to  pay  the  plaintiff,  and  who  had, 
therefore,  the  legal  interest  by  way  of  trust,  could  have  maintained 
an  action  at  law  in  its  own  name  to  recover  the  money.  Undoubtedly, 
when  a  contract  had  been  made  directly  with  the  principal,  by  a  mere 
agent  having  no  beneficial  interest  in  it,  such  agent — the  case  of  a 
factor  being,  to  some  extent,  an  exception— could  not  support  an 
action  thereon.  Where  A,  having  a  general  power  of  attorney  to 
collect  debts,  etc.,  in  the  name  and  for  the  use  of  B,  delivered  a  con- 
tract to  an  attorney  to  collect,  who  gave  him  a  receipt  for  it  generall}-, 
as  for  collection,  it  was  held  that  A  could  not  maintain  an  action  in 
his  own  name  against  the  attorney  for  money  collected  by  him  on  the 
contract  so  put  into  his  hands.     Giinn  v.  Cantine,  10  Johns.  387. 

But,  though  the  agent  in  that  case  had  no  beneficial  interest  in  the 
contract,  it  was  admitted  that  he  might  have  sued  in  his  own  name  if 
there  had  been  an  express  promise  to  pay  the  money  to  him.  Harp 
V.  Osgood,  supra. 


550  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

Where  the  contract  was  express  to  pa}'  A  for  the  use  of  B,  on  con- 
sideration moving  from  B,  it  raised  such  a  legal  interest  by  way  of 
trust  as  would  maintain  an  action  in  A's  name,  though  A  may  have 
acted  as  the  agent  of  B,  with  or  without  disclosing  his  agency. 
In  such  a  case,  To  entitle  the  agent  to  sue  in  his  own  name,  it  was  not 
necessary  that  the  beneficial  interest  should  be  in  him,  or  that  the 
consideration  should  proceed  from  him.  Nor  was  it  required  that  he 
should  himself  be  personally  liable  on  the  contract,  as  a  right  to  sue 
as  trustee  could  exist  without  any  pretence  of  a  personal  liability. 

Prior  to  the  Code,  therefore,  I  am  of  the  opinion  that  the  plaintiflf 
might  have  maintained  an  action  on  the  express  contracts  set  out  in 
the' complaint  for  the  benefit  of  his  principals,  having  a  legal  interest 
in  them  by  way  of  trust.  The  promise  being  to  him  in  writing  for 
the  benefit  of  another,  he  would  have  been 'deemed  the  party  "with 
whom,  or  in  whose  name,"  the  contracts  were  made,  and  in  whose 
name  alone  the  promise  could  be  enforced  in  a  court  of  law. 

The  Code,  however,  abrogatedjhe  common  law  rule.  thatjhe_right 
of  action  followed  the  legal  title,  and  made  the  beneficial  interestjhe 
sole  test  ol'ThTright     In  adopting  the  latter  rule,  it  was  easily  to  be 
seen  that  there  was  a  class  of  cases  in  which  it  would  be  extremely 
I  prejudicial  to  the  remedy,  as  well  as  difficult  of  application,  viz.,  the 
case  of  executors,  persons  authorized  by  statute  to  sue,  and  trustees 
of  an  express  trust.     To  obviate  this,  it  was  specially  provided  that, 
in  these  cases,   the  executor,   or   statutory  party,  or   trustee  of   an 
express  trust,  might  sue  without  joining  with  him  the  person  for 
whose  benefit  the  action  was  prosecuted.     (Code,!  113.)     The_term 
"trustee  of  an  express  tru.s_t 'Miad,  however,  acquired  a  technical  and 
statutory  meaning]"  Express  trusts,  at  least  up  to  Fhe  adoption  of  the 
Revised  Statutes,  were  defined  to  be  trusts  created  by  the  direct  and 
positive  acts  of  the  parties  by  some  writing,  or  deed,  or  will;    and  the 
Revised  Statutes  had  abolished  all  express  trusts,  except  as  therein 
enumerated,  which  related  to  land.     If  the  113th  section  of  the  code 
was  to  be  confined  and  limited  to  those  enumerated  as  express  trusts, 
the  practical  inconvenience  arising  from  making  the  beneficial  interest 
the  sole  test  of  the  right  to  sue,  and  which  that  section  was  intended 
to  obviate,  would  continue  to  exist  in  a  large  class  of  formal  and 
informal  trusts.     Accordingly,  in    1851,  the  section  was  amended  by 
.adding  the  provision  that  "a  trustee  of  an  express  trust,  within  the 
I  meaning  of  the  section,  shall  be  construed  to  include  a  person  with 
J  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of  an- 
I  other."     It  is  to  be  observed  that  there  is  no  attempt  to  define  the 
meaning  of  the  term  "trustee  of  an  express  trust,"  in  its  general 
sense;    but  the   statutory  declaration  is,  that  those  words  "shall  be 
construed  to  include  a  person  with  whom,  or  in  whose  name,  a  contract 
is  made  for  the  benefit  of  another." 

The  counsel  for  the  respondent  insists  that  the  sole  intention  of  the 


CONSIDKKAXT  :'.  BRISBANE. 


55  L 


legislature,  in  amending  the  section,  was  to  remove  a  doubt  that 
had  been  expressed,  whether  a  factor  or  other  agent  who  had,  at 
common  law,  a  right  of  action  on  a  contract  made  for  the  benefit  of 
his  principal  (by  reason  of  his  legal  interest  in  the  contract),  was,  by 
the  Code,  deprived  of  that  right.  But  no  such  limited  intention  can 
be  inferred  from  the  words  of  the  statute.  Indeed,  it  is  only  by  a 
liberal  construction  of  the  section  that  the  case  of  a  contract  by  a 
factor  (an  individual  contract)  can  be  brought  within  it  at  all.  It  is 
intended,  manifestly,  to  embrace,  not  only  formal  trusts,  declared  by 
deed  inter  partes,  but  all  cases  in  which  a  person,  acting  in  behalf  of  a 
third  party,  enters  into  a  written,  express  contract  with  another,  either 
in  his  individual  name,  without  description,  or  in  his  own  name, 
expressly  in  trust  for,  or  on  behalf  of,  or  for  the  benefit  of,  another,  bj' 
whatever  form  of  expression  such  trust  may  be  declared.i  jt  in- 
cludes, not  only  a  person  with  whom,  but  one  in  whose  name,  a 
contract  is  made  for  the  benefit  of  another. 

The  contracts  set  out  in  the  complaint  are  within  its  terms.  They 
are  made  in  the  name  of  the  plaintiff,  for  the  benefit  of  the  Belgian 
corporation.  The  subscription  notes  are  payable  to  the  plaintiff  by 
name,  as  "executive  agent"  of  principals  named,  and  are,  therefore, 
contracts  made  with  him  for  the  benefit  of  another,  and  in  a  repre-i 
sentative  capacity  necessarily  involving  a  trust. 

The  court  below  assumed  the  ground  that,  where  the  promisee, 
though  named  in  the  contract,  was  mentioned  only  in  respect  of  his 
ofiicial  or  representative  character,  and  not  as  promisee  individuallj-, 
the  promise  would  not  be  deemed  made  to  him;  and,  hence,  such  a 
case  would  not  be  embraced  within  section  113.  This  can  not  be  the 
true  construction  of  the  statute.  If  the  promise  be  to  a  person  de- 
scribed as  agent,  and  it  appears  upon  the  face  of  the  writing,  ex- 
pressly or  by  implication,  that  it  was  made  for  the  benefit  of  another, 
it  is  within  the  intention,  and,  I  think,  the  terms  of  the  enactment. 
It  could  hardly  have  been  the  intention,  as  contended  for  b}-  the 
counsel  of  the  respondent,  to  include  a  contract  which  did  not,  on  the 
face  of  it,  in  terms  or  by  implication,  declare  or  disclose  a  trust,  in  the 
category  of  "express  trusts;  "  whilst  one,  expressing  the  trust  on  its 
face,  was  to  be  excluded.  The  obvious  policy  of  the  legislature  was 
to  reser\'e  the  right  of  action" in  all  "cases  of  express  trusts,  whether 
ttlU  Illbll  Ll'flTenrTn  terms  declared  the  trust,  or  b'y  liecussai^  implica- 
tion disclosed  it.  In  this  caSe,  if  the  werrds7-**-as-executive  agent,"  are 
to  be  treated  as  a  mere  description  of  the  person,  then  the  promise 
was  to  the  plaintiff  individually;  but  if  the  plaintiff  is  to  be  consid- 
ered as  acting  in  a  representative  capacity,  they  are  contracts  made 
with  him  in  that  capacity  for  the  benefit  of  another,  and  necessarily 
involving  a  trust.     Indeed,  the  terms  "  executive  agent  "  indicate  an 


1  Compare    Waterman  v.    Webster  (iSSS),  io8   N.  Y.  if 
affirms  and  distinguishes  this  doctrine. 


163,  where  Danforth,  J.,  re- 
—Ed. 


552  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

active  trust.  Had  the  subscription  notes  on  their  face  been  made 
payable  to  the  plaintiff  "in  tru.st  for  the  company,"  etc.,  no  one 
would  doubt  of  their  falling  within  the  statute.  In  legal  effect,  the 
contracts  as  much  involve  a  trust  as  though  the  same  was  declared  in 
words. 

The  court  below  reached  the  conclusion  that,  though  the  plaintiff's 
name  was  contained  in  the  contract,  it  was  accompanied  by  such  a 
designation  of  the  representative  character  in  which  he  was  named  as 
promisee  that  the  promise  was,  in  judgment  of  law,  made  to  the 
principal  and  not  to  himself;  and  that,  in  such  cases,  the  contract 
could  not  be  said  to  be  made  in  his  name.  It  is  assumed  that  the 
written  contract  in  this  case  was  made,  in  legal  effect,  with  the  prin- 
cipals, by  the  plaintiff,  acting  as  their  mere  naked  agent,  and,  in  a 
leo'al  sense,  can  not  be  said  to  be  made  with  or  in  the  name  of  the 
plaintiff.  It  would  follow,  from  such  an  assumption,  that  neither 
before  nor  since  the  Code,  could  the  plaintiff  sue  thereon.  This,  how- 
ever, is  an  incorrect  view.  Before  the  Code,  I  think,  the  remed}'  at 
law,  upon  an  express  contract  of  this  character,  must  have  been 
enforced  in  the  name  of  the  plaintiff;  but  that,  if  there  was  any 
doubt  upon  this  subject,  the  plaintiff  clearly  falls  within  that  descrip- 
tion of  person  who,  by  the  113th  section  of  the  Code,  shall  be  con- 
strued to  be  a  "trustee  of  an  express  trust,"  and,  as  such,  authorized 
to  sue.  Since  the  adoption  of  the  general  rule,  that  actions,  either 
of  a  legal  or  equitable  nature,  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  the  person  for  whose  benefit  the  action  was 
prosecuted  might  be  joined  with  the  trustee;  but  section  113  ex- 
pressly authorizes  suits  to  be  maintained  by  the  trustee  alone. 

Upon  the  whole,  I  am  of  the  opinion  that  the  action  may  be  pros- 
ecuted in  the  name  of  the  plaintiff,  and  that  the  demurrer  can  not  be 
sustained.  The  judgment  of  the  Superior  Court  vshould  be  reversed, 
and  that  of  the  Special  Term  affirmed. 

Selden,  Davies,  Clerke,  and  WELLES,  JJ.,  concurred. 

COMSTOCK,  C.  J„  Bacon,  and  Denio,  JJ.,  dissented. 

Judgment  at  General  Term  reversed  and  that  at  Special  Term 
affirmed} 

1  In  his  dissenting  opinion,  Denio,  J.,  remarked:  "  If  this  action  had  been  prosecuted 
under  the  rules  as  to  parties  which  prevailed  before  the  Code  of  Procedure  was  enacted, 
the  question  would  have  been,  whether  the  contract  was  made  with  the  plaintiff,  as  the 
promisee,  or  with  the  corporation  mentioned  in  the  complaint, by  the  plaintiff,  as  its  aijent. 
If  the  plaintiff  was  considered  the  contracting  party,  the  action  could  be  maintained  in 
his  name,  though  the  corporation  were  the  party  beneficially  interested  ;  the  rule,  in 
actions  ex  contractu,  being  that  the  suit  must  be  in  the  name  of  the  party  in  whom  t!;e 
legal  interest  is  vested,  though  the  equitable  interest  should  be  in  another  person.  The 
Code,  though  adopting  as  a  general  rule  the  practice  prevailing  in  courts  of  equity,  bv 
which  the  parties  having  the  beneficial  interest  were  required  to  be  brought  before  the 
court,  made  an  exception  in  favor  of  the  trustees  of  express  trusts,  and  in  favor  of  parties 
with  whom  and  in  whose  name  contracts  were  made  for  the  benefit  of  other  persons. 
Such  contractors,  in  order  to  include  them  within  the  words  of  the  exception,  were  to  be 
considered  trustees  of  express  trusts.     The  question  to  be  determined  is,  therefore,  pre- 


OTIIH R  INSTAN-cr.S  UV  TKUSTlvF.S  OP  EXPRESS  TRUSTS.  533 

ciscly  the  same  whicli  would  have  arisen  if  there  had  heen  no  Code,  namely,  whether,  in 
point  of  law,  this  contract  was  made  by  the  defendant  with  Mr.  Considerant,  the  plaintifl', 
or  with  the  corporation  named  Rurcau,  Guillon,  Godin  &  Co. 

"In  strictness  of  lanfjua^e,  the  promise  is  to  the  plaintiff.  The  defendant  in  terms 
promises  to  pay  the  money  to  him.  But  it  is  not  a  case  in  which  the  words  which  follow — 
'  as  executive  ajjent  of  the  company  Bureau,  Guillon,  Godin  &  Co.' — can  be  taken  as  a 
descriptive  addition  to  his  name;  for  they  are  clearly  inserted  for  no  such  purpose,  but  to 
denote  the  character  in  which  he  is  to  receive  the  money.  It  is  to  be  paid  to  him  as  agent 
for  a  principal  who  is  named.  There  is  nothing  on  the  face  of  the  instrument,  or  in  the 
averments  of  the  complaint,  to  show  that  the  plaintiff  has  any  pecuniary  interest  in  the 
performance  of  the  agreement,  or 'that  he  was  under  a  mutual  obligation  to  furnish  the 
shares  for  which  the  sum  promised  was  the  price,  or  that  any  motive  of  interest  or  con- 
venience existed  for  interposing  a  formal  contracting  party  between  the  promisor  and  the 
the  party  entitled  to  the  thing  promised.  In  such  case  my  opinion  is  that  the  contract  is 
generally  deemed  to  be  made  with  the  person  named  as  the  real  party  in  interest  in  the 
transaction. 

"The  cases,  in  which  a  similar  question  has  arisen,  are  numerous;  but  they  are  not 
quite  in  harmony  with  each  other. 

"  Without  undertaking  to  lay  down  a  principle  \vhich  will  determine  all  cases  of  this 
kind,  I  think  it  may  safely  be  stated  that  where  it  appears  that  the  duty  which  the  instru- 
ment acknowledges  is  due  to  a  corporation  whose  agent  or  officer  is  by  the  contract 
appointed  to  receive  the  thing  promised,  and  nothing  appears  to  show  that  he  has  any 
interest  apart  from  his  principal,  or  that  there  was  any  motive  for  interposing  the  agent  as 
a  contracting  party  between  the  promisors  and  the  party  equitably  entitled,  it  ought  to  be 
held  that  the  promise  was  made  to  the  latter.  That  rule,  applied  to  this  case,  would  lead 
to  the  affirmance  of  the  judgment  appealed  from." 

CoMSTOCK,  Cn.  J.,  and  Bacon,  J.,  concurred  in  this  opinion. 

NOTE. OTHER  INSTANCES  OF  TRUSTEES  OF  EXPRESS  TRUSTS,  ETC. 

Lewis  V.  Graham  (1857),  4  Abb.  Pr.  106.  [B.  assigned  certain  claims  to  C.  in  trust  to  col- 
lect the  same,  and  out  of  the  proceeds  to  pay  the  expenses,  a  certain  commission,  and  then 
certain  debts  owed  by  B.,  the  balance  to  be  paid  over  to  B.]  :  "The  assignee  had  full  power 
to  collect  such  claims  in  his  own  name.  By  §  in  of  the  Code  of  Procedure  every  action  is 
to  be  brought  in  the  name  of  the  real  party  in  interest,  but  by  $  113  an  exception  is  made 
in  favor  of  a  trustee  of  an  express  trust.  .  .  .  The  subsequent  clause  of  1851  was  not 
intended  to  limit  the  meaning  of  the  term  "trustee  of  an  express  trust"  to  the  case 
therein  mentioned,  but  to  extend  it  so  that  it  should  include  a  person  with  whom  a  contract 
is  made  for  the  benefit  of  another." — Per  Ingraham,  F.  J. 

Sandmeyer  v.  Dakota  Ins.  Co.  (iSgi),  2  S.  D.  346, 351  :  "  That  an  assignment  for  the  bene- 
fit of  creditors  which  purports  to  convey  to  the  assignee  the  absolute  legal  and  equitable 
title  to  an  assigned  property  charged  with  a  trust  to  pay  debts  cimstitutes  the  assignee  the 
'•trustee  of  an  express  trust.,'  who  is  authorized,  by  $  4S72  Compiled  Laws,  to  bring  an  ac- 
tion in  his  own  name,  seems  to  be  the  settled  doctrine  of  the  courts.  Pom.  Ti^cw/.  $  17S ; 
Bliss  Code  PI.  $262;  Lewis  v.  Graham,  \  Abb.  Pr.  106;  Mill  Co.  v.  Vandal  I.,  i  Minn.  246; 
Foster  v.  Brown,  65  Ind.  234 ;  Wheeler  v.  Havjhins,  loi  Ind.  4S6  ;  Butter  field  v.  Macomber, 
23  How.  Pr.  150.  And  this  would  be  the  same,  we  apprehend,  whether  the  assignment  be 
general  or  special.  But  to  have  this  effect  the  assignment  must  convey  and  transfer  the 
absolute  legal  and  equitable  title  to  the  assignee,  free  from  all  control  of  the  assignor.  It 
must  be  an  absolute  appropriation  of  the  property  to  the  payment  of  the  debts.  It  must 
pass  both  the  legal  and  equitable  title  to  the  property  absolutely  beyond  the  control  of  the 
assignor,  except,  perhaps,  as  to  the  unemployed  balance  after  the  payment  of  the  debts, 
which  would  naturally  revert  to  the  assignor.  But  when  a  debtor  transfers  money  or 
property  to  a  third  person  to  pay  to  his  creditors,  without  transferring  the  absolute  legal 
and  equitable  title,  the  relation  of  such  third  person  to  the  debtor  is  that  of  an  agent  until 
the  creditor  assents  to  the  transaction  ;  and  until  such  consent  the  debtor  may  revoke  the 
intended  appropriation  ;  and,  when  collections  are  to  be  made  by  the  agent  in  the  name  of 
the  debtor,  and  the  business  transacted  in  the  debtor's  name,  the  title  to  the  property  re- 
mains in  the  debtor,  and  an  action  must  be  brought  in  the  debtor's  name.  .  .  .  There 
being  no  absolute  transfer  of  these  policies  vesting  the  legal  and  equitable  title  in  Sand- 
meyer [the  assignee],  free  from  the  control  of  Harrison  [the  assignor],  and  Sandmeyer  not 
being  the  real  party  in  interest,  and  not  being  the   trustee  of  an  expressed   trust,  as  con- 


554  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

templated  by  the  statute,  he  was  not  authonzed  to  bring  the  action   in  his  own  name,  and 
the  court  properly  refused  to  admit  the  so-called  assignment  in  evidence."— P^/-  Corson,  J. 

Kimball  v.  Spicer  (iS6o),  12  Wis.  66S.  [The  complaint  averred  that  the  written  promise 
sued  upon  had  been  assigned  and  transferred  by  the  promisee  to  the  plaintiff,  "  who  from 
thence  hitherto  has  continued  to  hold,  own,  and  possess  the  same  for  the  benefit  of  the 
Kenosha  County  Bank,  and  is  entitled  to  the  sum  of  money  due  and  owing  from  the  de- 
fendant thereon,  for  the  benefit  of  the  Kenosha  County  Bank  aforesaid"]  :  "Since  the 
complaint  alleo-es  that  the  stock  subscription  of  the  defendant  was  transferred  and  as- 
signed to  Kimball  for  the  benefit  of  the  bank,  this  constitutes  him  a  '  trustee  of  an  express 
trust.'    See  Grinnell  v.  Schmidt,  2  Sandf.  705."— P^r  Cole,  J. 

Gardinier  v.  Kelloa-o-,  (1S61),  14  AVis.  605,  60S.  [G.  was  indebted  to  H.  on  a  draft  for  $490, 
and  had  h  claim  against  K.  on  notes  secured  by  mortgage  for  ii;500.  G.  and  H.  agreed  that 
the  latter  should  place  his  draft  in  the  hands  of  G.'s  attorney,  that  the  attorney  should  sue 
on  the  notes  and  mortgage  in  G.'s  name  and  apply  the  proceeds  to  the  payment  of  the 
draft  less  a  fee  of  $50]  :  "The  action  was  properly  brought  in  the  name  of  the  present 
plaintiff  (G).  .  .  It  was  doubtless  contemplated  that  the  collection  would  go  on  in  his 
name,  and,  being  the  legal  owner,  he  may  properly  be  denominated  a  trustee  of  an  ex- 
press trust  within  the  meaning  of  the  statute."— P^r  Dixon,  C.  J. 

Clark -v.  Titcomb  (1S64),  42  Barb.  122.  [A  mutual  insurance  company  borrowed  $32,000 
from  different  persons  and  firms  and  delivered  premium  notes,  indorsed  in  blank,  to  T.,  a 
member  of  one  of  these  firms,  with  the  express  understanding  that  he  should  hold  and 
collect  the  same  for  the  benefit  of,  and  as  trustee  for,  his  firm  and  the  several  other  firms 
and  persons]  :  "  The  plaintiff  holds  this  note  as  trustee  of  an  express  trust.  The  action 
was  therefore  properly  brought  in  his  name." — Per  Barnard,  J. 

Boardman-v.  Beckwith  (1865),  iS  Iowa  292,295:  "Appellants  complain  that  they  were 
not  allowed  to  introduce  a  certain  bond  for  the  purpose  of  showing  that  one  W'oodbury 
was  interested  in  the  prosecution  of  this  action,  and  that  he,  and  not  plaintiff,  should  have 
brought  the  same.  An  examination  of  the  bond  satisfies  us  that  the  court  properly  re- 
jected the  evidence.  That  plaintiff  held  the  legal  title  as  against  Woodbury  (under  whom 
he  claims)  is  beyond  doubt.  The  bond  or  agreement  offered  only  shows  that  plaintiff,  upon 
certain  terms  and  conditions,  was  to  account  to  Woodbury  for  the  proceeds  arising  from 
certain  lands  (including  that  in  controversy)  bought  for  taxes,  the  full  legal  title  being  in 
plaintiff,  who  agrees  to  pay  therefor  according  as  the  adventure  might  prove  fortunate  or 
otherwise.  But  there  is  nothing  to  indicate  that  Woodbury  retained  any  part  of  the  legal 
title.  At  most,  as  between  them,  Boardman  [the  plaintiff]  could  only  be  regarded  as  the 
trustee  of  an  express  trust;  and,  as  such,  he  was  properly  the  sole  'plaintiff'.'" — Pe.r 
Wright,  C.  J. 

Tyler  v.  Granger  (1S70),  48  Cal.  259  :  "A  trustee  to  whom  land  is  conveyed  by  a  debtor, 
with  power  to  sell  and  use  the  proceeds  in  payment  of  the  debt  and  the  expenses  of  the 
trust,  and  whose  powers  and  duties  are  prescribed  by  a  declaration  of  trust  in  writing,  and 
who  merely  holds  the  title  in  trust  as  security  for  the  debt,  can  not  maintain  ejectment 
against  the  grantor  of  the  trust  estate,  or  his  assigns,  '  for  the  manifest  reason  that  the  in- 
struments creating  the  trusts  gave  him  no  such  right  of  possession,  nor  was  possession  es- 
sential or  necessary  to  a  full  and  complete  execution  of  the  trust.'  " — Per  Spragle,  J. 

Lasar-v.  Johnsoyi  (1S99),  125  Cal.  549.  [Action  by  the  "  Subscription  Committee,"  on  the 
following  subscription  paper,  signed  by  the  defendant: 

We^  the  undersigned^  do  hereby  agree  to  fay  the  amounts  set  opposite  our  respective  names 
to  the  Subscription  Committee  of  Los  Osos  Parlor,  No.  61,  N.  S.  G.  W.,  on  or  before  March 
15,  1S9G.  The  money  so  paid  to  be  used  in  entertaining  delegates  to  the  Grand  Parlor  of  the 
N.  S.  G.  W.  during  their  stay  in  the  City  of  San  Luis  Obispo]:  "The  subscription  was, 
on  its  face,  made  pay.able  'to  the  Subscription  Committee  of  Los  Osos  Parlor,'  and  the 
complaint  alleges  that  the  plaintiffs  constituted  said  committee,  and  as  such  committee 
entertained  said  delegates,  etc.  Trustees  of  express  trusts  need  not  join  the  cestuis  que 
trust  as  parties,  though  the  title  of  the  cause  should  state  that  they  sue  as  trustees  of  the 
person  or  association  for  whom  they  are  acting.  If,  however,  the  body  of  the  complaint 
shows  that  they  are  trustees  of  an  express  trust,  and  for  whom  they  are  such  trustees 
[Spear  V.  M^a;-^,  20  Cal.  659  ;  IVise  v.  Williams,  ^2  Cal.  544,  547),  it  is  sufficient ;  and  these 
facts  appear  in  the  complaint.  Besides,  the  objection  should  have  been  taken  by  demur- 
rer, as  the  alleged  defect  appeared  upon  the  face  of  the  complaint." — Per  H.A.YNES,  C.  (p. 
555).  See  also  actions  by  trustees  for  subscriptions:  Slocum  T.  Barry  (1864),  34  How.  Pr. 
320  ;  affirmed  3S  N.  Y.  46  ;  Dix  v.  Akers  (186S),  30  Ind.  431  ;  Afussehnan  -v.  Cravers  (1S74), 
47  Ind.  I.    And  compare  Presbyterian  Society  v.  Beach  (1S7S),  74  N.  V.  72. 

Clark,  as  Trustee,  t.  Fosdick  (1SS9),  iiS  N.  V.  7.     [Action  by  C,  astrustee,  to  recover  an 


OTIirvK    IXSTANCKS  OF  TKrSTF.KS  f)F  KXl'IUCSS  TRUSTS.  555 

installment  tlut;  undfr  articles  of  separation  lietwccn  tlie  delcndant  and  his  wife,  after- 
wards divorced.  The  articles  were  entered  into  by  the  husband,  the  wife,  and  llie  plain- 
tiff, who,  as  trustee,  w.is  party  uf  the  third  part.  Defendant  demurred,  on  the  ground, 
among  others,  that  there  was  a  defect  of  parties  plaintiff,  in  that  the  action  was  brought 
by  the  trustee  alone]  :  "  By  the  e.\prcss  terms  of  the  agreement  of  separation  the  defend- 
ant agrees  to  pay  to  the  plaintilT  for  and  towards  the  support  and  maintenance  of  de- 
fendant's wife,  Jennie  P.,  and  their  children,  the  yearly  sum  of  .$^,500  for  and  during  the 
period  of  her  natural  life,  unless  she  remarries,  etc.,  and  the  plaintiff  and  said  Jennie 
agree  that  said  sum  so  paid  shall  be  in  full  satisfaction  of  the  support  and  maintenance  of 
said  Jennie  and  children  and  all  alimony  whatsoever.  This  clearly  constituted  the  plain- 
tifl"  the  trustee  of  an  express  trust,  and  required  that  an  action  to  enforce  or  to  e.xecute 
the  trust  should  be  brought  in  his  name."— Pfr  Potter,  J.,  citing  Code  of  Civ.  Pro.  ^  449  ; 
Catkins  V.  Long,  21  Barb.  97  ;  Greenfield  v.  Mass.  M.  L.  Ins.  Co.,  ^,^  N.  Y.430;  Slocumv. 
Barry,  3S  N.  Y.  46  ;  Ihighcs  v.  Mercantile  Ins.  Co.,  44  How.  Pr.  351. 

People  V.  Norton  (iS53),9  N.  Y.  176.  [Action  upon  a  bond  given  "  to  the  people  of  the 
State  of  New  York"  for  the  benefit  of  Henry  Lynch  and  the  children  of  Mary  Lynch]: 
"  The  next  question  is  whether  the  bond  can  be  prosecuted  in  the  name  of  the  people,  or 
whether  it  must  be  sued  in  the  names  of  those  beneficially  interested.  .  .  The  plaintiffs 
in  this  case  were  trustees  of  an  express  trust  within  the  meaning  of  $  113.  The  duty  of 
holding  the  bond  for  the  benefit  of  the  children  of  Mary  Lynch  appears  plainly  by  the  re- 
citals in  the  bond  itself.  Money  collected  on  the  bond  in  the  name  of  the  people  is  col- 
lected for  these  children,  and  a  court  of  equity  directs  it  to  be  paid  as  a  matter  of  course. 
.  The  action,  therefore,  was  rightly  brought  in  the  name  of  the  people." — Per  RuG- 
GLKS,  Ch.  J.  So  in  Stillwell  v.  Htirlbert  (1S5S),  iS  N.  Y.  374.  [To  induce  a  deputy  sheriff  to 
sell  a  wagon  taken  in  execution,  and  which  might  belong  to  one  not  a  party,  the  plaintiff 
in  the  execution  gave  his  bond  indemnifying  the  sheriff  "  and  all  and  every  person  and 
persons  aiding  and  assisting  him  in  the  premises."  A  judgment  being  obtained  against 
the  deputy  for  the  price  of  the  wagon  thus  sold,  the  sheriff  sued  on  the  bond.  It  was  ob- 
jected that  the  suit  was  wrongly  brought].  "  In  respect  to  the  deputy  who  held  the  execu- 
tion, and  who  in  fact  received  the  bond,  the  plaintiff  became  the  trustee  of  an  express- 
trust.  The  obligation  was  executed  to  him  for  the  benefit  of  his  deputy.  It  is  the  precise 
case  for  which  provision  was  made  in  $  113  of  the  Code.  .  .  Without  reference  therefore 
to  the  assignment  of  the  demand  to  the  plaintiff,  the  action  was  well  brought."—/'^''  Har 
RIS,J.  See  also  The  ."^tate,  to  vise:,v.  Moore  (1854),  19  Mo.  369 ;  Meier  v.  Lester  (1855),  21 
Mo.  112.  Compare  Shelby  County  v.  Simmonds  (1S71),  33  Iowa  345  ;  Hunter  v.  Commission- 
ers (1S60),  10  O.  S.  515. 

Waringv.  Indemnity  Fire  Ins.  Co.  (1S71),  45  N.  Y.  606.  [A  policy  of  fire  insurance  was 
taken  out  in  their  own  names  by  commission  merchants  on  certain  goods  "their  own,  or 
held  in  trust  on  commission,  or  sold,  but  not  removed,  contained  in  bonded  warehouse." 
Tlie  goods,  after  being  fully  sold  and  technically  delivered,  but  while  not  actually  re- 
moved, were  destroyed  by  fire.  The  commission  merchants  sue  in  their  own  names  for 
this  loss] :  "Although  the  action  is  in  the  name  of  the  persons  named  in  the  policy,  their 
recovery  will  be  in  trust  for  Bunker  Bros,  [the  purchasers].  Stillwell  v.  Staples,  19  N.  Y. 
401.  Section  113  of  the  Code  declares  that  the  term  'trustee  of  an  express  trust'  shall  in- 
clude a  person  with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit  of  another, 
and  permits  an  action  on  the  contract  to  be  brought  in  the  name  of  the  trustee.  So  this  ac- 
tion was  properly  brought  in  that  respect."— P^-r  Folger,  J.,  p.  613.  See  also  Protection 
Ins.  Co.  -v.  Wilson  (1856),  6  O.  S.  55-, ;  Sturm  v.  Atlantic  Mutual  Ins.  Co.  (1S75),  63  N.  Y.  77. 

Greenfield  v.  Massachusetts  Mutual  Life  Ins.  Co.  (1S72),  47  N.  Y.  431.  [A  policy  of  life 
insuraiue  was  made  payable  to  the  "  assured,  his  executors,  administrators  and  assigns," 
for  the  benefit  of  his  wife  and  mother]  :  "  This  constituted  the  personal  representatives  of 
the  assured  the  trustees  of  an  express  trust  within  the  meaning  of  iS  1 13  of  the  Code."— P^r 
Gkover,  J. 

Fidelity  d-  Casualty  Co.  v.  Ballard  Jt  Ballard  Co.  (1S99),         ^V-  ;  48  S.  \\ .  Rep.  1074. 

^The  Ballard  &  Ballard  Co.  applied  for  insurance  for  the  protection  of  its  employes,  under 
a  "  workman's  collective  policy."  Shortly  afterwards,  and  before  the  written  policy  was 
actually  issued,  one  of  these  employes  was  killed  while  in  the  discharge  of  his  duties.  The 
company  sued  in  its  own  name  at  law  to  recover  on  the  contract  of  insurance,  which  was 
to  be  in  force  unless  and  until  the  company  gave  notice  of  its  rejection  of  the  application]  : 
"If  the  beneficiaries,  under  the  contract,  should  have  been  made  parties  plaintiff,  the  ques- 
tion should  have  been  raisea  by  special  demurrer.  Having  failed  to  make  the  question  in 
that  wav,  the  defendant  can  not  now  make  it.     Besides,  we  are  of  opinion  that  the  plain- 


55(3  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

tiff  is  the  trustee  of  an  express  trust,  and  it  is  not  necessary,  under  $  21,  Civ.  Code  Prac,  to 
join  with  it  the  person  for  whose  benefit  the  action  is  prosecuted."— P^y  Paynter,  J. 

Hooper  v.  Chicago  Ry.  (1S70),  27  Wis.  Si.  [Action  to  recover  ior  100  barrels  of  flour  lost 
through  the  defendant's  alleged  negligence]  :  "  The  last  position  taken  is,  that  the  plain- 
tiff was  not  the  owner  of  the  flour  at  the  time  of  the  loss,  and  can  not  sue,  but  that  the 
title  was  in  the  consignees,  who  alone  can  maintain  the  action.  In  Blanchard  v.  Page,  8 
Gray  2S1,  it  was  held,  after  a  most  elaborate  examination,  that  the  shipper  named  in  a  bill 
of  lading  may  sue  the  carrier  for  an  injury  to  the  goods,  although  he  has  no  property,  gen- 
eral or  special,  therein.  This,  it  was  held,  might  be  done  by  force  of  the  original  con- 
tract for  safe  carriage  made  by  the  carrier  with  him.  Such  right  of  action  upon  the  con- 
tract is  not  affected  by  the  provision  of  the  Code  which  requires  every  action  to  be  brought 
in  the  name  of  the  real  party  in  interest.  The  shipper  is  a  party  in  interest  to  the  con- 
tract and  it  does  not  lie  with  the  carrier  who  made  the  contract  with  him  to  say,  upon  a 
breach  of  it,  that  he  is  not  entitled  to  recover  the  damages,  unless  it  be  shown  that  the 
consignee  objects  ;  for,  without  that,  it  will  be  presumed  that  the  action  was  commenced 
and  is  prosecuted  with  the  knowledge  and  consent  of  the  consignee,  and  for  his  benefit. 
The  consignor  or  shipper  is,  by  operation  of  the  rule,  regarded  as  a  trustee  of  an  express 
trust,  like  a  factor  or  other  mercantile  agent  who  contracts  in  his  own  name  on  behalf  of 
his  principal."— Pt'>- DixoM,  C.  J.  See  also  Waterman  V.Chicago  Ry.{\'S&it),f^i  Wis.  46,1, 
46S  ;  Wolfe  V.  Missouri  Pacific  Ry.  (iSSS),  97  Mo.  473,  47S  ;  Compare  Krulder  v.  Ellison 
{1S71),  47  N.  Y.  36  ;  Thompson  v.  Fargo  (1875),  63  N.  Y.  479.  See  49  N.  Y.  188  and  afite  p. 
196;  S-jjift  V.  Pacific  Mail  Steamship  Co.  (1SS7),  106  N.  Y.  206  ;  Laddv.  Arkell  (1874), 37  N. 
Y.  35,  39- 


WlvAVlvR  :•.  Till-,  TKl'STKI'S  OK  THIC  WABASH  &  ERIE  CANAI,.       o.')7 

Wlv.Wl'R  :■.  Tinv  TlUSTlvI-S  OF  TIIlv  WABASH  AND  ERIK 

CANAL. 

vSi-i'Ki-Mi'  Coi-KT  <)i-  Indiana,  May  Term,  1S67.  ^  l*y  ^^ 

[2S  /m/.,  112.]  ^^^  (V»>*^ 

The  case  came  up  on  appeal  from  the  Tippecanoe  Circuit  Cou't. 
The  facts  are  sufllciently  stated  in  the  opinion. 

J?.  P.  Davidson,  and  \V.  Wallace,  for  appellant. 

//.  W.  Chase,  and  /.  A.  Wilslach,  for  appellee. 

Elliott,  C.  J.— Suit  by  the  Trustees  of  the  Wabash  and  Erie  Canal 
against  Weaver,  the  appellant,  to  recover  assessments  on  stock  sub- 
scribed by  him  in  a  co-partnership  association,  known  as  the  "  Wabash 
and  Erie  Canal  Company,"  organized  for  the  purpose  of  repairing  and 
maintaining  the  Wabash  and  Erie  Canal  from  Terre  Haute  to  the  Ohio 
state  line,  "  as  a  permanent  channel  of  transportation  and  inland  com- 
merce." 

The  appellant  demurred  to  the  complaint,  for  the  following  causes  : 

"  I.  There  is  a  defect  of  parties,  in  this,  that  the  said  Wabash  and  Erie 
Canal  Company  should  have  been  made  a  party  defendant  to  answer 
as  to  its  interests  in  the  subject  matter  of  the  action." 

"  2.  The  complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action." 

The  demurrer  was  overruled,  and  the  appellant  declining  to  answer 
over,  final  judgment  was  rendered  against  him.  The  ruling  of  the 
court  on  the  demurrer  raises  the  only  questions  presented  here.i 

The  second  ground  of  demurrer  is,  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  in  favor  of  the  plaintiff's, 
the  canal  trustees.  And  it  is  insisted  that  the  facts  alleged  in  the  com- 
plaint do  not  show  that  the  plaintiffs,  in  respect  to  the  cause  of  action, 
are  trustees  of  an  express  trust,  within  the  meaning  of  the  code,  so  as 
to  authorize  them  to  sue  for  said  assessments  in  their  individual  or 
corporate  names ;  nor  that  they  are  real  parties  in  interest  in  the  sub- 
ject of  the  action. 

These  questions  are  certainly-  not  entireh'  free  from  difficulty  or 
doubt.     The  rule  at  common  law  required  that  the  action  should  be 

»  The  complaint,  as  appears  from  an  omitted  portion  of  the  opinion,  set  out  at  length  the 
following  facts : 

The  Wabash  and  Eric  Canal  being  out  of  repair  and  unfit  for  navigation,  and  its  board 
of  trustees  being  unable  to  make  the  necessary  repairs,  certain  persons  who  were  interested 
in  the  navigation  of  the  canal  formed  an  association  for  the  purpose  of  making  a  contract 
with  the  trustees  to  receive  the  tolls  and  keep  the  canal  in  repair.  The  members  of  the 
associ.ation  subscribed  certain  sums,  which,  by  the  articles  of  association,  were  to  be  paid 
in  assessments  of  a  certain  per  cent.,  upon  the  call  of  a  board  of  managers  appointed  by 
the  association.  It  was  further  provided  that  if  the  assessments  were  not  paid,  the  hoard 
of  trustees  of  the  canal  should,  upon  request  of  the  board  of  managers  of  the  association) 
sue  for  such  assessments  in  their  corporate  name,  and  hold  the  same  for  the  use  of  the 
board  of  managers. 


558  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

prosecuted  in  the  name  of  the  party  holding  the  legal  title  or  interest 
in  the  cause  of  action ;  but  under  the  code  a  different  rule  prevails. 
Sections  three  and  four  of  the  code  provide  that  "  every  action  must 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  except,"  that, 
.1       "an  executor,  administrator,  a  trustee  of  an  express  trust,  or  a  person 

"4  -((U  I  expressly  authorized  by  statute,  may  sue  without  joining  with  him  the 
person  for  whose  benefit  the  action  is  prosecuted.  A  trustee  of  an  ex- 
press trust,  within  the  meaning  of  this  section,  shall  be  construed  to 
include  a  person  with  whom,  or  in  whose  name,  a  contract  is  made  for 
the  benefit  of  another." 

The  New  York  code  contains  precisely  the  same  provision.  Ours, 
in  fact,  is  copied  from  it.  And  in  Siilliuell  v.  Hurlbert,  i8  N.  Y.  374, 
in  which  a  deputy  sheriff  holding  -an  execution  took  a  bond  to  his 
principal,  conditioned  to  indemnify  the  latter  and  all  persons  assisting 
him  in  the  premises,  it  was  held  by  the  Court  of  Appeals  that  an  ac- 
tion would  lie  in  the  name  of  the  sheriff  for  the  benefit  of  the  deputy. 
Harris  J.,  said :  "  In  respect  to  the  deputy  who  held  the  execution, 
and  who  in  fact  received  the  bond,  the  plaintiff  became  the  trustee  of 
an  express  trust.  The  obligation  was  executed  to  him  for  the  benefit 
of  his  deputy.  It  is  the  precise  case  for  which  provision  is  made  in 
the  113th  section  of  the  code."  And  so  in  Considcrant  v.  Brisbane,  22 
N.  Y.  389,  it  was  held  that  the  agent  of  a  foreign  corporation  might 
maintain  an  action  in  his  own  name  upon  a  subscription  note  payable 
to  him.  "  as  executive  agent  of  the  company,"  for  stock  of  the  corpo- 
ration to  be  issued  to  the  maker  of  the  note,  although  the  plaintiff  had 
no  personal  interest  in  the  note,  on  the  ground  that  he  was  the  trustee 
of  an  express  trust,  and  could  maintain  the  action  under  the  code. 
*  J)  •  In  botli  these  cases,  howev^iythe  obligation  was  made  pa:^able  to 

^      jj         the  trustee,  and  henc'e**nTe3'  can   not  be  regarded  as  decisive  of  the 


V" 


r 


li  ♦questionpreijeiited  by  the  case  at  bar.  Here,  the  obligation  to  pay 
^•'J^  the  money_is  found  in  the  agreement  of  partnership  to  which  those 
\r  composingihe  canal  company  are  alone  parties,  and  not  in  the  contract 

between  the  company  and  the  plaintiffs.  It  is  the  mutual  obligation 
between  the  members  of  the  canal  company,  by  which  each  promises 
to  his  co-partners  that  he  will  pay  to  the  executive  committee  of  the 
company  the  assessments  that  may  be  made  against  him  upon  the 
amount  of  his  subscription  to  the  capital  of  the  company.  But  it  is 
further  agreed,  that  in  the  event  that  such  assessments,aiejiot  promptlj' 
paid  to  said  pyppntivF-rnmrm'tt^p,  the  board  of  trustees,  upon  the  re- 
quest of  ^njrl  rnTnmitt.Pf..jS]ial1  pnfnrw  thf^-f-ftyffK'nt  thereof  by  suit  in 
their  corporate  name,  aujihold-the-umuey  when  so  collected  in  trust 
for  the  company.  Aiid_the  question_still  remains,  doesjthis  provision 
make  the  board  of -trustees -of-thR  rauaUrustees  of  an  express  trust, 
within  the  meaninp^  of  the  fourth  section  of  the  code,  and  enable  them 
to  enforce  the  payment  of  the  assessments  by  suit  in  their  corporate 
name  for  the  use  of  the  canal  company  ? 


wiiAXKK  :■•  Tin;  TiasTi;i:s  oi-^  TiUv  \vaha.sh  &  urie  caxai,.      'mQ 

An  express  trust  is  simply  a  trust  created  by  the  direct  and  positive 
acts  of  the  parties,  by  some  writing,  or  deed,  or  will.  And  it  is  to  be 
observed,  in  reference  to  the  fourth  section  of  the  code,  that  it  does 
not  assume  to  define  the  meaning  of  the  term,  "  trustees  of  an  express 
trust,"  in  its  general  sense  ;  it  simply  declares  that  those  words,  within 
the  meaning  of  the  section,  "  shall  be  construed  to  include  a  person  1 
with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of 
another."  Evidently,  this  provision  was  not  intended  to  limit  the  1 
gejieral  meaning  of  the  tenn  "  pvj->I-f«^^  trii^<^  "  r.r  tn  nr,nG^^  \hf-  opera- 
tion  of  the  statute  to  the  particular  .c1--^ti.s  of  r^^r.^  rpf^rrpfl  tr^  bnf  rather 
to  enlarge  its  sense  by  including  also  that  class  within  it.  Here,  by 
the  mutual  agreement  of  the  members  of  the  canal  company,  express 
authority  is  conferred  by  their  articles  of  association  upon  the  board 
of  triLstees  of  the  canal  to  enforce  the  pajment  of  these  assessments, 
upon  the  request  of  the  executive  committee,  by  suit  in  their  corporate 
name,  m  trust  for  the  use  and  benefit  of  the  company. 

The  reason  for  the  creation  of  the  trust  is  obvious.  The  canal  com- 
pany was  organized  for  the  sole  purpose  of  leasing  the  canal,  and  ob- 
ligating the  company  to  put  it  in  proper  repair  for  navigation,  and 
receiving  the  rents,  tolls,  and  revenues  thereof.  The  condition  of  the 
canal  was  such  as  to  require  the  expenditure  of  a  large  sum  of  money 
to  render  it  navigable,  which  was  to  be  contributed  by  the  members  of 
the  company,  in  proportion  to  the  amount  subscribed  by  them  re- 
spectively to  the  capital  of  the  company,  and  to  be  paid  upon  calls  of 
the  executive  committee.  The  company  was  not  incorporated,  and 
could  not  enforce  the  payment  of  these  calls  or  assessments  by  suit  in 
their  co-partnership  name.  The  members  of  the  company  numbered 
between  three  and  four  hundred  persons,  scattered  over  a  wide  extent 
of  territory,  embracing  a  large  number  of  counties,  all  of  whom  must 
have  been  made  parties  to  a  suit  for  contribution,  and  brought  before 
the  court.  Such  a  process  would  unavoidably  be  so  slow,  tedious,  and 
expensive  as  to  render  it  inadequate,  if  not  useless,  and  greatly  tend 
to  defeat  the  very  objects  of  the  organization.  Under  such  circum- 
stances, it  was  peculiarly'  projDer  that  the  company  in  its  organization, 
should,  if  possible,  confer  upon  a  trustee  the  power  to  enforce  the  pa3-- 
ment  of  the  assessments  by  a  suit  in  his  own  name,  in  trust  for  the 
use  and  benefit  of  the  compan}-.  We  think  the  authorit}'  conferred  on 
the  trustees  of  the  canal  constituted  them  trusteelj  of  an  express  trust  '—^ 

within  tne  meanmg  ot  the  code.  '  i/t/Vi-''^ 

We  are  akso  ot  opinion,  that  the  power  thus  conferred  on  the  board  ^-^ 

of  trustees  of  the  canal  was  coupled  with  an  interest  in  them,  in  their 
trust  capacit}'.  A  former  company  had  contracted  to  keep  the  canal 
in  repair  for  navigation,  and  had  done  so  until  the  spring  of  iS66,  when 
it  sustained  such  material  injury  by  floods  as  to  render  it  unfit  for  nav- 
igation, and  to  require  in  its  repair  an  expenditure  of  a  much  larger 
sum  of  money  to  fit  it  for  navigation  than  the  company  had  derived 


560  IX   WHOSE    NAME    THE    ACTION    SHOCLD    BE    BROUGHT. 

from  its  tolls  and  revenues,  or  than  the  members  thereof  were  willing 
to  advance  from  their  private  means.  It  was  the  duty  of  the  trustees, 
under  their  trust,  to  keep  the  canal  in  navigable  order  and  repair,  if  it 
could  be  done  by  its  tolls  and  revenues,  but  they  did  not  possess  the 
means,  belonging  to  the  trust,  sufficient  to  repair  the  injuries  to  it 
caused  by  the  floods  of  that  j-ear.  Merchants,  tradesmen,  and  others, 
residing  at  different  places  along  the  line  of  the  canal,  and  especiall}^ 
those  engaged  in  trade  and  commerce,  were  greatly  interested  in  its 
repair.  The  former  company  agreed  to  surrender  their  contract  with 
the  trustees,  and  the  new  company  was  organized  with  a  large  capital 
for  the  sole  purpose  of  procuring  a  contract  from  the  trustees  for  the 
repair  of  the  canal,  and  the  advancement  of  the  means  necessary  for 
that  purpose,  in  consideration  that  they  should  receive  the  tolls  and 
revenues  of  the  canal  to  reimburse  them  for  the  expenditures  so  made. 
It  is  apparent,  both  by  the  partnership  agreement  and  the  contract 
between  the  company  and  the  trustees,  that  it  was  intended  that  the 
company  should  advance  the  necessar}-  amount  to  put  the  canal  in  re- 
pair, and  it  may  fairl}^  be  inferred  that  the  contract  was  made  with 
a  direct  reference  to  the  provisions  in  the  articles  of  partnership  con- 
ferring on  the  trustees  the  power  to  enforce  assessments  for  repairs, 
b}'  suit  in  the  corporate  name,  and  that  it  formed  one  of  the  induce- 
ments to  the  contract  on  their  part,  as  the  means  by  which  the^^  would 
secure  the  repair  of  the  canal.  It,  in  effect,  forms  a  part  of  the  con- 
tract to  which  the  trustees  are  parties,  and  in  which  they  have  an  in- 
terest.i 

We  think  the  court  committed  no  error  in  overruling  the  demurrer 
to  the  complaint,  and  that  the  judgment  should  be  affirmed. 

The  judgment  is  affirined  with  eosts. 


BROWN  :■.  CHERRY. 
Supreme  Court  op  New  York,  General  Term,  October  6,  iS6S. 

[56  Barb,  ey^.y 

The  action  was  to  restrain  the  defendant  from  foreclosing  a  mort- 
gage, executed  bj^  the  plaintiff,  of  which  the  defendant  was  the  holder. 

It  appeared  on  the  trial,  that  in  1853,  one  Mrs.  Stewart  was  the  owner 
of  personal  property  which  had  been  transferred  to  her  b}-  her  husband 
before  their  marriage  ;  that  she  sold  it  to  John  Langdon  ;  and  that 
Langdon,  in  consideration  thereof,  transferred  the  title  to  the  real  estate 
in  question  to  the  plaintiff.  Brown,  by  deed  absolute  in  form,  and  with- 
out the  then  knowledge  of  Brown,  which  deed  from  Langdon  to  Brown 

•     Part  of  the  opinion,  on  another  point,  is  omitted. 
2  S.  C,  38  How.  Pr.  352. 


i;k()\\n  :•.  cin:uRV.  •">(;] 

was  intended  for  tlie  benefit  of  Mrs.  vStewart,  she  being  aware  tliat 
the  conveyance  was  to  be  made  to  Brown,  but  unaware  of  the  form  in 
wliich  the  conveyance  was  to  be  made. 

On  the  I  St  of  I\Iay,  1858,  Brown  executed  and  delivered  to  ]\Irs. 
vStewart  his  promissory  note  for  $300,  for  the  premises,  payable  at 
ninety  days,  but  he  never  paid  it,  and  was  never  called  upon  to  do  so. 
lie  never  entered  into  the  actual  possession  of  the  premises,  and  had 
nothing  to  do  with  the  care  or  use  of  them,  and  considered  that  he 
held  them  for  the  benefit  of  ]\Irs.  Stewart. 

On  the  29th  of  December,  1S57,  Brown  executed  a  mortgage  on  the 
premises  to  one  Chaunce}'  W.  Cherry,  to  secure  the  payment  to  him  of 
the  sum  of  $1500,  in  five  3'ears  from  the  13th  of  May,  1858,  with  annual 
interest,  and  without  any  bond  collateral  thereto,  or  covenant  for  the 
payment  b}'  him.  At  the  time  he  executed  the  mortgage,  he  was  re- 
quested to  do  so  by  Mr.  Stewart,  the  hu.sband  of  INIrs.  Stewart,  and  he 
supposed  that  he  executed  it  for  the  parties  beneficiallj'  interested  in 
the  prenii.ses,  but  he  received  no  consideration  for  the  mortgage,  what- 
ever. The  proof  showed  that  INIrs.  Stewart  did  not  authorize  the  giving 
of  the  mortgage,  and  did  not  know  of  its  execution  until  a  long  time 
afterwards  ;  and  there  was  no  proof  that  there  was  anj'  consideration 
whatever  for  the  execution  of  it. 

It  further  appeared  that  during  all  the  time  after  the  deed  from 
Ivingdon  to  Brown  was  executed,  Alpheus  Stewart,  the  husband  of 
]\Irs.  Stewart,  had  possession  and  charge  of  the  premises.  The  referee 
also  found,  "  that  the  plaintiff  claimed  to  prosecute  the  action  for  the 
benefit  of  Mrs.  Caroline  Stewart,  wife  of  Alpheus  Stewart "  ;  but  no 
such  claim  was  made  in  the  complaint,  nor  does  it  so  appear  from  the 
case,  further  than  from  the  facts  above  stated. 

On  the  6th  of  August,  1861,  Chauncey  W.  Cherry  assigned  the  mort- 
gage to  Ira  Hopkins,  who,  by  his  last  will  and  testament  bequeathed 
it  to  his  daughter,  the  defendant.  After  his  death,  and  at  the  time  of 
the  commencement  of  the  action,  she  was  proceeding  to  foreclose  it 
by  advertisement,  pursuant  to  the  statute,  for  the  whole  amount  of 
the  principal,  and  for  the  whole  amount  of  interest  thereon,  none  hav- 
ing ever  been  demanded  or  paid. 

There  was  no  objection  taken  that  any  other  person  or  persons  were 
not  joined  with  the  plaintiff  as  parties  to  the  action,  either  b}'  de- 
murrer or  answer. 

At  the  close  of  the  trial  the  plaintiff's  counsel  asked  the  referee  to 
find  and  decide,  "  ist.  That  the  plaintiff  having  executed  and  de- 
livered the  mortgage  in  question  to  Cherry,  the  plaintiff  can  maintain 
this  action  to  set  it  aside  for  want  of  consideration,  without  joining 
the  person  having  the  equitable  interest  in  the  lands  so  mortgaged. 
2nd.  That  the  objection  of  non-joinder  of  said  person  as  a  part}' 
plaintiff  not  having  been  taken,  either  by  demurrer  or  answer,  is 
waived." 


562  IN  WHOSE  name;  the  action  should  ee  brought. 

The  referee  refused  so  to  find,  to  which  the  plaintiff  excepted ;  and 
the  referee  dismissed  the  complaint,  "  on  the  ground  that  the  plaintiflf 
was  not  the  real  party  in  interest,  nor  the  trustee  of  an  express  trust." 
To  this  decision  the  plaintiff's  counsel  excepted. 

Judgment  was  entered  for  the  defendant,  jDursuant  to  the  report,  and 
the  plaintiff  appealed. 

Hunt  &  Green,  for  the  appellant. 

Henry  Reigel,  for  the  respondent. 

Foster,  J. — We  must  assume,  for  the  purpose  of  deciding  the  ques- 
tions before  us,  not  only,  as  the  referee  has  found,  that  the  plaintiflf 
received  no  consideration  for  the  execution  of  the  mortgage,  but  also 
that  it  was  without  consideration  to  Mrs.  Stewart ;  for  if  that  would 
give  the  plaintiflf  any  more  right  to  bring  this  action  than  if  she  did 
receive  a  consideration,  it  was  the  duty  of  the  referee  to  find  and  de- 
clare how  the  fact  was,  instead  of  refusing  to  find  it,  on  the  ground 
that  it  was  immaterial. 

But  upon  the  supposition  that  the  plaintiflf  was  not  a  trustee  of 
an  express  trust,  was  the  fact  of  such  want  of  consideration  to  her 
immaterial  ? 

Upon  the  proofs  in  the  case,  the  plaintiff,  although  he  supposed  he 
was  acting  for  the  benefit  of  ^Irs.  vStewart,  in  executing  the  mort- 
gage, executed  it,  in  fact,  without  her  knowledge  or  authoritj',  and 
without  consideration  to  her.  He  held  the  legal  estate  in  the 
premises,  and  there  was  nothing  in  the  convej-ance  to  him  which 
would  give  notice  to  an}^  one  that  he  held  it  onl3^  in  trust;  and  there 
can  be  no  doubt,  I  think,  that  a  foreclosure  against  him  by  advertise- 
ment, pursuant  to  the  statute,  if  the  sale  were  regular  and  completed  to 
a  purchaser  for  value,  without  notice,  would  cut  oflf  the  equity  of  ]\Irs. 
Stewart,  although  no  notice  of  the  proceeding  were  serv^ed  upon  her. 
Great  injustice  would  ensue,  if  parties  were  allowed  to  hold  the  bene- 
ficial interest  in  land,  under  deeds  to  other  persons,  purporting  to  be 
in  fee  simple,  against  encumbrances  placed  upon  it  by  the  grantee,  in 
favor  of  persons  who  had  no  notice  of  the  secret  trust,  and  equal 
injustice  if,  upon  the  statutorj^  foreclosure  of  any  mortgage  executed 
by  the  secret  trust,  in  his  own  name,  such  trust  could  prevail  against 
a  purchaser  at  the  mortgage  sale,  in  good  faith  and  for  a  valuable 
consideration.  And  it  is  clear  from  the  language  of  the  statute,  that 
upon  the  foreclosure  in  question  no  notice  to  INIrs.  Stewart  was 
necessary.     2  R.  S.  778,  §  3,  subd.  4,  4th  ed. 

Suppose,  then,  the  plaintiflf  had  not  commenced  this  action,  to 
restrain  the  statutory  foreclosure,  and  a  sale  of  the  premises,  regular 
in  form,  had  been  made  to  a  purchaser  for  valuable  consideration 
and  without  notice;  would  not  the  plaintiflf  be  liable  to  INIrs.  Stewart 
for  the  loss  she  sustained  by  his  wrongful  mortgaging  of  the  prem- 
ises, and  would  it  be  any  answer  to  such  alleged  liability  that  he  hon- 
estly supposed  that  he  was  acting  for  her  when  he  executed  it  ?     I 


BROWN  z:  CHERRY.  oG:; 

think  not,  and  that  he  had  such  a  pecuniar}-  interest  in  the  question, 
for  that  reason,  as  autliorized  him  to  bring  the  action;  and  the  referee 
erred  in  refusing  to  find  that  the  mortgage  that  was  executed  without 
the  knowledge  of  ^Irs.  Stewart,  and  without  consideration  to  her. 

Again,  was  the  referee  right  in  holding  that  the  plaintiff  was  not 
the  "trustee  of  an  express  trust"?  It  is  claimed  by  the  counsel  for 
the  defendant  that  the  trust  in  question  was  a  resulting  trust,  instead 
of  an  express  trust;  but,  I  think,  without  sufficient  ground  for  such 
claim.  A  resulting  trust  hardly  ever  arises  from  acts  which  show  that 
the  trustee  and  Wie.  ceslui  que  trust  concur  in  the  creation  of  it;  and  it 
is  well  illustrated  by  the  case  of  a  purchase  by  one,  in  his  own  name, 
of  propert)',  with  the  funds  which  he  has  in  his  hands,  belonging  to 
another,  to  be  applied  to  some  other  purpose,  or  where  he  has  such 
funds  in  his  hands  for  the  purcha.se  of  a  particular  piece  of  real 
estate,  for  and  in  the  name  of  his  principal,  and  he,  in  violation  of 
his  instructions,  makes  the  purchase  and  takes  the  absolute  legal  title 
to  himself.  In  such  cases  there  is  a  resulting  trust  in  favor  of  the 
person  whose  funds  have  been  used  hy  the  grantee.  Such  was  not 
the  case  here.  The  principal  knew  that  the  deed  was  to  be  taken  in 
the  name  of  Brown,  though  she  did  not  know  what  the  form  of  the 
deed  would  be. 

It  is  what,  at  common  law,  was  an  implied  trust,  and  it  is  technic- 
ally so  still ;  and  it  must  be  conceded  that  it  was  not  an  express  trust 
at  common  law.  "  Express  trusts  are  those  which  are  created  in 
express  terms  in  the  deed,  writing,  or  will,  while  implied  trusts  are 
those  which,  without  being  expressed  are  deducible  from  the  nature 
of  the  transaction,  as  matters  of  intent;  or  which  are  superinduced 
upon  the  transaction,  by  operation  of  law,  as  matters  of  equity,  inde- 
pendentl}'  of  the  particular  intention  af  the  parties."  Bouvier's  Law 
Die,  tit.  Trust. 

Neither  was  it  what  is  termed  an  express  trust  in  the  Revised 
Statutes.  I  Stat,  at  Large,  76S,  \  55,  et  seq.  Nor  is  it  to  ni}^  mind 
certain  that  it  was  so  according  to  section  113  of  the  Code  of  Proced- 
ure, as  originally  enacted,  which  was  perhaps  intended  to  embrace 
such  as  were  express  trusts,  at  the  common  law,  and  by  the  several 
statutes,  and  was  as  follows :  "  An  executor  or  administrator,  or 
trustee  of  an  express  trust,  or  a  person  expressly  authorized  by 
statute  may  sue  without  joining  with  him  the  person  for  whose 
benefit  the  action  is  prosecuted."  And  yet  upon  the  authority  of 
Grinnell  v.  Schmidt,  2  Sandf  706,  decided  in  ^Ia\-,  1850,  there  would 
seem  to  be  no  doubt  that  it  was. 

In  1S51,  section  113  of  the  Code  was  amended,  hy  adding  at  the 
end  of  it  the  following  words  :  "  A  trustee  of  an  express  trust,  within 
the  meaning  of  this  section,  shall  be  construed  to  include  a  person 
ivith  ivhom  or  in  zcliose  name  a  contract  is  made  for  the  benefit  of  an- 
other."    Now  the  plaintiff  not  only  held  the  legal  title  to  the  land  in 


564  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  HROUGHT. 

his  own  name,  for  the  benefit  of  another,  but  the  very  mortgage  in 
question  was  executed  by  him,  in  his  own  name,  not  for  his  own 
benefit,  but  for  the  benefit,  as  he  supposed,  of  his  cestui  que  trust. 

And  it  seems  to  me  that  this  case  comes,  not  only  within  the  spirit 
of  the  amendment  of  1851,  but  within  its  letter.  "  A  factor  or  other 
mercantile  agent,  who  contracts  in  his  own  name,  on  behalf  of  his 
principal,  is  a  trustee  of  an  express  trust,  within  the  meaning  of 
section  113  of  the  Code,  and  is  the  proper  party  to  bring  an  action 
upon  the  contract."  Grinnell  v.  Schmidt,  2  Sandf.  706.  And  the 
Court,  at  page  709,  say :  "  It  has  been  generally  supposed  that  the 
words,  express  trust,  in  this  section,  refer  to  trusts  of  land,  author- 
ized by  the  Revised  Statutes,  and  which  are,  in  the  statutes  them- 
selves, termed  express  trusts,  and  to  them  alone.  It  is  not  necessarj-, 
how^ever,  to  give  to  the  words  this  restricted  meaning.  They  are 
capable  of  a  more  extensive  signification,  so  as  to  include  all  contracts 
in  which  one  person  acts  in  trust  for,  or  in  behalf  of,  another.  Of 
this  kind  are  contracts  made  bj'  factors  and  other  mercantile  agents, 
who  act  in  their  own  names,  but  for  the  benefit  of,  and  without 
disclosing  their  principals."  And  it  would  seem  that  the  amendment 
of  1 85 1  was  intended  to  give  the  original  section,  in  express  terms, 
the  same  construction  which  had  been  given  it  by  the  Superior  Court. 

In  Roivland  v.  Phalin,  i  Bosw.  43,  it  was  decided  that  as  to  a  con- 
tract made  by  a  party  of  the  first  part,  assuming  to  act  in  behalf  of 
others  not  named,  and  to  bind  himself  personally  to  accomplish 
certain  results,  beneficial  to  the  parties  of  the  second  part,  in  consid- 
eration of  their  agreement  to  pay  him,  for  the  benefit  of  those  for 
whom  he  acts,  the  party  of  the  first  part  is  "  a  trustee  of  an  express 
trust,"  within  the  meaning  of  section  113,  and  may  sue  in  his  own 
name,  without  joining  with  him  those  for  whose  immediate  benefit 
the  action  is  prosecuted.  It  has  also  been  held  that  a  mere  agent, 
who  contracts  in  his  own  name,  and  without  disclosing  the  name  of 
his  principal,  is  a  trustee  of  an  express  trust,  and  may  maintain  an 
action  upon  the  contract,  in  his  own  name,  without  joining  his  prin- 
cipal; and  it  is  also  held  that  in  such  case  the  principal  also  has  the 
right  to  sue  without  joining  the  agent  with  him.i 

An  auctioneer  who  sells  goods  in  his  own  name,  to  a  third  person, 
is  the  trustee  of  an  express  trust,  within  the  meaning  of  the  section  in 
question,  and  may  sue  upon  the  contract,  without  an  assignment  of 
the  cause  of  action.  And  he  is  not  bound  to  show  that  he  was  a 
licensed  auctioneer.  He  sues  under  the  statute  as  a  "trustee  of  an 
express  trust,"  having  made  a  sale  of  goods  for  the  benefit  of  an- 
other.    Bogartv.  O'RegUft,  i  E.  D.  Smith,  591. 

In  Minturn  v.  Main,  3  Selden,  220,  it  was  decided  that  a  public 
auctioneer  who  sells  goods  for  another  may  maintain  an  action  for  the 

1  C'/V?«j^  Morgan  v.  Reid,  7  Abb.  215.  The  Union  India  Rubber  Company  v.  Tomlinson, 
1  E.  D.  Smith,  380.    Van  Lien  v.  Byrnes,  i  Hilt.  133. 


liKOWN  :'.  cin:Ki<\-.  oCo 

price,  althou.^h  he  lias  received  liis  advances  and  commissions,  and 
has  no  interest  in  the  projjerty  or  its  proceeds.  And  the  Court  in  its 
opinion,  at  page  224,  says:  "  There  are  two  considerations  whicli  are 
conclusive  against  the  defendant;  one  is,  that  an  auctioneer  has  such 
a  special  pr()i)erty  or  interest  in  the  subject  matter  of  the  sale,  that  he 
may  sue  in  liis  own  name,  unless  the  principal  or  real  owner  elect  to 
bring  the  action  in  his  name.  Chitty  on  Cont.  185.  And  it  is  not 
necessar}'  to  prove  that  he  has  a  special  property  or  interest,  for  that 
flows  as  a  matter  of  course  from  his  position  as  an  auctioneer,  and  it 
is  only  where  a  party  acts  as  a  mere  agent  or  servant  that  a  special 
beneficial  interest  must  be  proved  to  maintain  an  action,  or  may  be 
disproved  to  defeat  it.  The  other  is  that  the  defendant  is  estopped 
from  denying  that  he  contracted  directl}^  with  the  plaintiffs  by  re- 
ceiving the  goods  from  them,  giving  his  receipts  to  them,  as  if  on  a 
purchase  made  by  him  of  them,  and  by  his  subsequent  recognition  of 
the  whole  transaction  as  a  sale  directly  from  them  to  him.  He  treated 
the  transaction  throughout  as  a  sale  from  them  to  him,  until  he  ob- 
tained possession  of  the  propert}'  and  appropriated  it  to  his  own  use, 
and  it  no  longer  lies  in  his  mouth  to  refuse  that  character  to  it." 

These  remarks  are  all  applicable  to  this  case.  In  that  case  the 
auctioneer  had  no  possible  interest  in  the  proceeds  of  the  sale,  except 
it  be  that  they  were  answerable  over  to  their  principal  therefor.  They 
had  received  their  charges  and  commissions.  And  j-et  they  were  held 
to  be  entitled  to  sue  because  they  had  an  interest  in  the  subject 
matter  of  the  suit.  Certainly,  if  I  am  right  in  supposing  that  the 
plaintiff  in  this  case  would  be  an.swerable  over  to  ]\Irs.  Stewart,  if  he  had 
permitted  the  unauthorized  mortgage  to  be  foreclosed,  he  has  as  much 
interest  in  this  action  as  the  auctioneers  had  in  that.  And  the  estop- 
pel on  the  defendant  is  here  quite  as  strong;  for  the  defendant,  or  the 
mortgagee,  under  whom  she  claims  the  mortgage,  contracted  with  the 
plaintiff  as  the  part}'  in  interest;  took  the  mortgage  from  him  in  his 
own  name,  and  afterwards  instead  of  proceeding  to  foreclose  it  by 
action,  he  did  so  by  advertisement,  and  treated  the  plaintiff  as  the 
only  penson  who  had  any  title  to  the  premises.  He  is  foreclosing 
against  him  as  the  party  interested,  and  he  should  not  be  allowed 
when  it  turns  out  on  the  trial  of  the  action  which  was  commenced  by 
the  plaintiff  to  stop  his  proceedings,  to  turn  round  and  insist  that  his 
mortagagor  has  no  interest  in  the  question,  whether  he  be  a  trustee 
of  an  express  trust  or  not. 

But  I  think,  upon  the  authority  of  the  case  oi  Coiisidcrant  v.  Brisbane, 
22  N.  Y.  Rep.  389,  there  can  be  no  question  that  the  plaintiff  was  a 
trustee  of  an  express  trust  within  the  meaning  of  section  113  as  it 
now  .stands. 1 

That  j\Irs.  Stewart  was  not  made  a  party,  furnished  no  good 
reason  for  the  dismissal  of  the  complaint.     It  is  enough  for  the  pur- 

*  Part  of  the  opinion,  quoting-  from  Cottsiderant  v.  Brisbane,  is  omitted. 


566  IN  WHOSE  NAME  THE  ACTION  SHOULD    BE  BROUGHT. 

poses  of  the  plaintiff  on  this  appeal,  if  it  appears  that  he  was  entitled 
to  commence  the  action,  alone,  or  in  conjunction  with  Mrs.  Stewart. 
If  he  had  a  standing  in  Court,  in  either  way,  upon  the  pleadings,  in 
this  case,  the  complaint  could  not  be  dismissed.  For,  if  INIrs.  vStewart 
should  have  been  a  party  plaintiff  with  him,  the  defendant,  if  he 
would  raise  the  question,  should  have  claimed  it  in  her  answer,  and 
could  not  ask  a  dismissal  for  that  reason  on  the  trial.  She  could  not 
demur  to  the  complaint,  for  that  contained  a  good  cause  of  action, 
and  there  was  no  statement  in  it  to  show  that  any  one  besides  the 
plaintiff  had  any  interest  in  the  controversy.  She  must  therefore 
have  claimed  the  misjoinder  by  setting  up  the  facts  on  which  she 
relied  for  that  purpose,  and  making  the  claim  in  the  answer,  and  by 
not  doing  so,  she  waived  it.i 

I  am  clearly  of  the  opinion  that  the  plaintiff  had  the  right  to  com- 
mence the  action  as  he  did,  and  if  the  defendant  would  insist  that 
INIrs.  Stewart  should  have  been  a  party,  in  order  to  a  full  and  final  dis- 
position of  the  controversy,  he  should  have  taken  the  proper  steps 
for  that  purpose.  And  if  it  appeared  on  the  trial  that  a  complete  de- 
termination of  the  controversy  could  not  be  had  without  the  presence 
of  ]\Irs.  Stewart,  the  court  should  have  caused  her  to  be  brought  in, 
pursuant  to  section  122  of  the  Code. 

The  judgment  should  be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  the  event.- 

MuLLiN,  J.,  concurred. 

Morgan,  J.,  dissented 

New  trial  granted. 

» Citing  Code,  %  14S.     Merritt  v.  Walsh,  32  N.  Y.  Rep.  685.     Hosley  v.  Black,  2S  id.  43S. 

-This  cause  came  again  before  the  General  Term  in  \i-,i.  Brown  v.  C/z^rry,  59  Barb. 
628,  and  it  was  decided  that  the  case  was  within  section  51  of  the  New  York  statute  of 
Uses  and  Trusts  (i  R.  S.  728),  declaring  that  where  a  grant  for  valuable  consideration 
shall  be  made  to  one,  and  the  consideration  paid  by  another,  no  trust  results  in  favor  of 
the  latter,  but  the  title  vests  in  the  former.  Accordingly,  the  referee's  dismissal  of  the 
complaint  was  sustained.  On  appeal  this  was  held  to  be  error.  "  The  case  came  within 
the  exception  contained  in  section  53  of  the  said  statute;  and  the  conveyance,  if  made  as 
directed  by  her,  although  ineffectual  as  a  trust,  would  have  vested  the  estate  in  herself; 
and  she  was  therefore  not  estopped  from  claiming  her  interest  in  the  mortgaged  prem- 
ises."    Brown  v.  Cherry  (1S73),  57  N.  Y.  645,646.  — Bd. 


SCANT  LI. \   :•.   ALLISON'  AND  AXDKRSOX.  507 

SCANTLIN    v.  ALLISON   AND    ANDERvSON. 

vSuPREMic  Court  ok  Kansas,  July  Tkrm,  1S73. 

[12  A'an.Ss.-] 

Action  on  three  promissory  notes  payable  to  James  B.  Allison  and 
John  N.  Anderson,  i)laintifTs  below.  vScantlin,  the  maker  of  the  notes, 
answered,  first,  that  the  plaintifis  were  not  the  real  parties  in  interest; 
second,  that  the  consideration  of  the  notes  had  failed;  and  third, 
damages  for  the  breach  of  covenants  of  seizin  in  a  deed  of  land  sold 
by  plaintiff  to  defendant,  and  for  the  purchase-money  of  which  land 
the  notes  were  given.  The  plaintiffs  had  judgment  for  the  full 
amount  of  the  notes;  Scantlin  brings  the  case  here  on  error. 

Richardso7i  &  Jones  and  W.  D.  Webb,  for  plaintiff  in  error. 

Killcy  &  May,  for  defendants  in  error.i 

Valentine,  J. — George  Allison  in  his  lifetime  executed  a  will  de- 
vising and  bequeathing  all  his  real  and  personal  property  to  his  five 
children,  in  equal  shares.  He  also  willed  that  said  property  should 
be  sold  whenever  a  majority  of  his  heirs  desired  the  same  to  be  done. 
But  as  to  how  it  shoidd  be  sold,  or  who  should  sell  it,  or  who  should 
receive,  take  charge  of,  or  distribute  the  proceeds  thereof,  he  made  no 
provision.  He  appointed  James  B.  Allison,  who  was  also  an  heir  and 
devisee,  and  John  N.  Anderson,  executors  of  his  last  will  and  testa- 
ment, and  guardians  for  two  of  his  children,  who  were  then  minors. 
After  the  death  of  George  Allison,  his  will  was  dul}-  probated,  and 
James  B.  Allison  and  John  N.  Anderson  were  dulj^  qualified  as 
executors. 

Afterward  all  the  heirs  except  one,  who  was  still  a  minor,  and  both 
the  executors,  united  in  selling  the  real  estate  to  Samuel  Scantlin, 
and  executed  to  him  therefor  a  general  warranty  deed,  with  certain 
special  covenants,  among  which  was  the  covenant  that  the  grantors 
had  "good  and  lawful  authority  to  sell  and  convey  the  same."  The 
executors  also  attempted  to  transfer  to  Scantlin  the  interest  of  the 
minor  heir  by  executing  for  him  the  said  deed  of  conve3-ance.  In 
consideration  of  this  deed,  and  the  land  thereby  conveyed,  Scantlin 
gave  certain  promissory  notes  payable  to  James  B.  Allison  and  John 
N.  Anderson,  and  payable  to  them  alone,  and  payable  to  them  as  in- 
dividuals, and  not  payable  to  them  as  executors,  guardians,  or  trus- 
tees. When  these  notes  became  due,  James  B.  Allison  and  John  N. 
Anderson  sued  Scantlin  on  the  same  in  their  ow^n  names,  individu- 
all3^  and  without  joining  with  them  any  of  said  heirs  as  plaintiffs. 
The  plaintiff  in  error  (defendant  below)  claims  that  the  plaintiffs  be- 
low should  have  brought  their  action  in  their  representative  capacity, 
as  executors  or  guardians,  and  not  in  their  own  individual  names. 

>  The  arguments  :ire  omitted. 


668  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

We  think,  however,  that  the  action  was  rightly  brought.  It  is  true 
tliat  the  money  due  on  the  notes  belonged  to  the  heirs ;  but  the  notes 
were  made  by  consent  of  all  parties  interested  therein  to  the  plain- 
tiffs in  their  individual  names,  and  not  to  the  heirs,  or  to  the  plain- 
tiffs in  their  representative  capacities.  The  plaintiffs  were  not  desig- 
nated in  the  notes  as  executors,  or  guardians,  or  even  as  trustees; 
and  while  it  is  true  that  the  plaintiffs  hold  the  notes  as  trustees  for 
the  heirs,  it  can  hardly  be  said  that  they  hold  them  as  either  executors 
or  guardians.  Section  2S  of  the  civil  code  provides  that  "  a  person 
with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit  of  an- 
other ma}^  bring  an  action  without  joining  with  him  the  person  for 
whose  benefit  it  is  prosecuted;  "  and  §  9  of  the  act  concerning  trusts 
and  powers  (Gen.  Stat.,  1097,)  provides  that  "  no  person  who  shall  in 
good  faith  pay  money  to  a  trustee  authorized  to  receive  the  same  shall 
be  responsible  for  the  proper  application  of  such  monej';  nor  shall 
any  right  or  title,  derived  by  him  from  such  trustee,  in  consideration 
of  vSuch  payment,  be  called  in  question,  in  consequence  of  misapplica- 
tion by  the  trustee  of  such  money."  Under  these  statutes  there  can 
be  no  reason  why  the  action  should  have  been  brought  differently 
from  what  it  was  brought;  and  under  these  stattites,  and  the  common 
law,  the  action  was  rightly  brought^ 


HAYS   ET   AL.   :-.  GALION   GAS    LIGHT   &   COAL   COMPANY. 

Supreme  Court  of  Ohio,  December  Term,  1876. 

[29  O.  S.  330.] 

Error  to  the  District  Court  of  Crawford  County. 

The  original  action  was  brought  in  the  common  pleas  by  William 
Hays  as  trustee,  against  the  Galion  Gas  Light  and  Coal  Oil  Company, 
Martin  Sponhauer,  William  Fail,  Thomas  B.  Burgert,  Otho  L.  Ha5-s, 
Joseph  Kesselmeier,  Asa  C.  Squires,  and  William  H.  Holmes,  de- 
fendants, to  foreclose  a  mortgage.  The  petition  stated  that  the  de- 
fendant, the  Galion  Gas  Light  and  Coal  Oil  Company  was  a  corpora- 
tion organized  and  incorporated  in  1859,  under  the  laws  of  the  state; 
that  on  the  ist  day  of  January,  1862,  being  largely  in  debt  and  in 
great  need  of  money,  and  for  the  purpose  of  raising  money  to  pay  its 
debts,  and  to  enable  it  to  manufacture  and  furnish  gas,  the  company 
made  and  delivered  to  the  plaintiff  its  sixty-five  promissory  notes, 
each  for  the  sum  of  $100,  each  bearing  interest  at  si.x  percent,  payable 
semi-annually,  January   ist  and  July  ist  of  each  year.     The  notes, 

'  Parts  of  the  opinion,  on  other  points,  are  omitted. 

The  cause  was  remanded  with  an  order  that  the  judgment  he  modified  because  of,  and 
to  the  extent  of,  a  partial  failure  of  consideration  in  the  deed  to  the  defendant,  arising 
out  of  the  fact  that  the  minor's  interest  had  been  sold  without  an  order  of  court.     — Ed, 


HAWS  i;t  ai..  :'.  gaijox  gas  light  &  coal  compaxv.  5(i9 

with  coupons  representing  the  interest,  were  numbered  from  i  to  65 
inclusive,  and  were  payable  to  William  Haj-s  or  bearer.  A  mortgage 
to  secure  the  pajment  of  the  notes  and  interest  was  executed  by  the 
company  to  William  IL'n-s,  on  the  corporate  property  described  in  the 
petition.  The  mortgage  was  in  the  ordinary  form  of  a  mortgage 
given  to  secure  payment  of  a  debt  to  the  mortgagee,  not  expressing 
upon  its  face  that  it  was  given  to  William  Hays  as  trustee. 

The  plaintiff  alleged  that  the  notes  and  the  mortgage  securing  the 
same  were  made  to  him  as  trustee,  and  not  as  owner,  and  that  he 
prosecuted  the  suit  for  the  benefit  of  the  holders  of  the  notes;  and 
that  notes  Xos.  i,  2,  and  3  were  held  by  the  defendant  William  Fail, 
Xo.  6  by  the  defendant  IMartin  vSponhauer,  and  all  the  others  by  the 
defendant  Otho  L.  Hays;  that  demand  of  the  interest  due  was  made 
at  the  banking  house  named,  and  refused,  more  than  ninety  days 
prior  to  the  commencement  of  the  action.  The  other  defendants 
claimed  some  lien  on  tiie  mortgaged  premises.  Copies  of  the  notes 
and  mortgage  were  attached  as  exhibits,  and  made  part  of  the  peti- 
tion. The  prayer  was  for  foreclosure  of  the  mortgage,  and  that  the 
proceeds  of  sale  might  be  divided  among  defendants  entitled  to 
receive  them,  and  for  other  equitable  relief. 

On  the  same  daj'  that  the  petition  was  filed,  the  defendants  Fail 
and  Otho  L.  Ha3'S,  each  filed  an  answer  and  cross  petition  claiming  to 
own,  respectively,  that  part  of  the  debt  of  which  they  were  alleged  by 
the  petition  to  be  the  owners,  stating  facts  showing  the  debt  was  due 
bj'  reason  of  the  failure  of  the  company  to  pay  the  interest  due  with- 
in ninety  daj's  after  demand,  and  praying  judgment  and  foreclosure 
of  the  company's  equit}^  in  the  mortgage.  To  the  petition  of  the 
plaintiff — but  not  to  either  cross-petition — the  company  demurred,  on 
the  ground  that  it  did  not  state  facts  sufiicient  to  constitute  a  cause 
of  action.  The  defendants,  Sponhauer,  Squires,  and  Riblet,  demurred 
to  the  answer  and  cross-petition  of  Otho  L.  Hays,  on  the  ground  that 
the  facts  stated  were  insuflScient  to  constitute  a  cause  of  action,  or  de- 
fence, or  counter  claim.  This  demurrer  was  also  overruled,  and  no 
issue  of  fact  being  tendered  by  answer,  the  court  gave  judgment  to 
Fail  and  Otho  L.  Hays  for  the  amounts  due  them  respectiveh',  and 
ordered,  in  default  of  paj'ment  of  the  judgments  within  ten  da5-s  from 
the  rising  of  court,  a  sale  of  the  mortgaged  property.  The  company 
carried  the  case  to  the  district  court,  where  the  judgment  of  the 
common  pleas  was  reversed. 

Otis,  Adams  &  Russell,  for  plaintiffs  in  error. 

6".  R.  Harris,  for  defendant  in  error.i 

BoYNTOx,  J. — The  record  discloses  the  fact  that  the  district  court 
reversed  the  judgment  of  the  common  pleas,  and  sustained  the  de- 
murrer to  the  petition,  on  the  ground  that  "  said  petition  shows  that 
the  said  defendant  in  error,  William  Hays,  has  no  interest  whatever 
in  the  notes  and  mortgage  mentioned  in  said  petition." 

1  The  statenir"t  of  fartsis  s!i"'ht'v  .iliridpred;   the  arg^uiiicnts  are  omitted. 


570  IN  WHOSE  NAME  THE  ACTIOX  SHOULD  BE  BROUGHT. 

It  is  proper  to  state  that  no  judgment  was  rendered  in  the  court  of 
common  pleas  in  favor  of  William  Hays  upon  the  notes,  the  judgment 
rendered  being  in  favor  of  Otho  L.  Hays  and  William  Fail  on  their 
respective  cross-petitions. 

The  position  assumed  as  a  predicate  for  reversal  must  have  been,  in 
accordance  with  what  is  now  claimed  by  the  defendants,  that  these 
judgments  were  improperly  rendered,  because  the  defendants  for 
whom  the}'  were  rendered  were  not  properh-  in  court,  inasmuch  as 
the  petition  did  not  state  a  cause  of  action  in  favor  of  the  plaintiff, 
William  Ha^-s.i 

Was  the  action  in  the  common  pleas  properl}-  brought  in  the  name 
of  W^illiam  Hays  as  trustee  ?  The  petition  alleged  the  fact  to  be  that 
the  company'  was  largely  in  debt  and  in  great  need  of  money,  and  that 
for  the  purpose  of  raising  monej-  to  pa}-  its  debts,  and  to  enable  it  to 
manufacture  and  furnish  gas,  it  executed  and  delivered  the  notes  and 
mortgage  to  the  plaintiff;  that  the  notes  and'  mortgage  were  made  to 
him  as  trustee  of  the  holders  of  the  notes,  and  not  as  owner;  and  that 
the  action  was  brought  for  their  benefit.  These  allegations,  upon 
demurrer,  must  be  taken  as  true;  and  so  taken,  the  question  presents 
the  ordinary  case  of  a  corporation  in  need  of  mone}-  to  carr}'  forward 
the  legitimate  business  for  which  it  was  created,  issuing  its  notes  or 
bonds  therefor  to  a  trustee,  and  securing  their  payment  by  mortgage 
to  him  of  the  corporate  propert}-,  other  than  its  franchises.  The  trus- 
tee in  such  case  is  usuall}-,  if  not  always,  selected  and  appointed  by 
the  company  for  the  convenience  and  benefit  of  itself,  and  of  those  who 
may  become  the  owners  of  its  obligations.  One  mortgage  to  the  trus- 
tee is  all  that  is  required,  no  matter  how  numerous  the  holders  of  the 
notes  or  bonds  secured  thereb}'.  He  is  the  representative  of  the  com- 
mon interests  of  all  who  maj^  invest  in  the  securit}-.  The  right  of  the 
owner  of  the  debt  secured  by  the  mortgage  to  be  represented  by  him 
gives  additional  value  to  the  security,  and  facilitates  the  collection  of 
the  debt  upon  its  maturity,  and  consequently  enables  the  compan}-  the 
more  readily  and  easily  to  realize  and  obtain  the  loan  desired.  It  is 
not  infrequently  the  case,  especially  in  the  business  of  great  corpora- 
tions, that  the  holders  of  the  bonds  are  so  numerous  that  it  would  not 
be  merely  inconvenient,  but  utterh-  impracticable,  to  bring  them  all 
before  the  court  in  a  proceeding  to  foreclose  the  equity  of  redemption. 
Doubtless  this  is  one  of  the  considerations  that  gave  rise  to  the  rule 
held  in  Coc  v.  The  Columbus,  Piqua  and  Indiana  R.  R.  Co.,  lo  Ohio  St. 
372,  that  the  bondholders,  when  numerous,  were,  in  an  action  for  fore- 
closure, neither  necessary  nor  proper  parties. 

It  is,  however,  said  by  counsel  for  the  defendant  that  the  plaintiff" 
below  was  not  a  trustee  of  an  express  trust,  nor  a  person  with  whom 
or  in  whose  name  the  contract  was  made  for  the  benefit  of  another, 
and  that  the  plaintiff"  made  no  such  allegation ;  and  that,  if  he  did,  the 

1  Part  of  tlie  opinion  is  omitted. 


MAYS  ET  AL.  C.  GALIOX  GAS  LIGHT  &  COAL  COMPANY.  571 

written  instrumeiits  would  contradict  him.  The  last  clause  of  this 
proposition  is  not  correct,  and  the  first  begs  the  very  question  at  issue. 
Tlie  vice  of  the  argument  consists  in  the  supposed  necessity  that  the 
notes  or  mortgage  should  contain  upon  their  or  its  face  the  evidence 
of  such  trust.  It  is  true  that  it  does  not  affirmatively  appear  upon  the 
face  of  the  notes  or  mortgage,  that  William  Hays  was  a  trustee  for  the 
holders  of  the  notes;  nor  does  it  appear  that  he  was  not  such  tru.stee. 
If  it  is  necessar>' that  such  trust  should  have  been  declared  in  writing, 
which  question  we  do  not  decide,  it  nowhere  appears  that  it  w  as  not  so 
declared.  If  required  to  be  in  writing,  it  was  not  necessary  that  the 
notes  or  mortgage  should  contain  the  evidence  of  the  trust.  No7i  con- 
stat, that  some  other  instrument  in  writing,  properl}-  executed,  did  not 
fully  evidence  the  appointment  of  the  trustee  and  define  his  duties. 
The  fact  stated  in  the  petition,  that  the  notes  and  mortgage  were  made 
to  him  as  such  trustee,  presupposes  or  implies  the  antecedent  exist- 
ence of  whatever  was  legally  necessary'  to  constitute  him  such  trustee. 
Being,  therefore,  a  trustee  for  the  purpose  alleged,  he  was  clearly  a 
proper  if  not  a  necessar}'  party.  He  was  either  a  trustee  of  an  express 
trust,  as  that  term  is  used  in  section  27  of  the  civil  code,  or  he  was  a 
person  with  whom,  or  in  whose  name,  a  contract  was  made  for  the 
benefit  of  another;  and  in  either  case,  he  is  expressl}'  authorized  to 
maintain  the  action.  Hs  is  more  than  a  mere  mortgagee,  holding  the 
naked  legal  title  to  the  mortgaged  property.  He  not  only  holds  the 
legal  title,  under  which  he  could  maintain  an  action  to  recover  the 
possession,  upon  condition  broken,  of  the  property  mortgaged,  but  he 
has  been,  by  the  agreement  of  the  parties,  constituted  a  trustee,  and  as 
such,  presumptively  clothed  with  the  requisite  power  to  act  for  the 
holders  of  the  notes,  and  as  the  representative  of  their  interests,  in  an 
action  to  collect  the  debts  when  matured.  "Whether  the  owners  of  the 
debt,  or  beneficiaries  under  the  trust,  are  numerous  or  not,  he  ma}-  so 
act  or  sue  without  uniting  with  him  those  for  whose  benefit  the  action 
is  prosecuted. 1  "The  only  concern  of  the  company,  after  the  amount 
due  upon  the  security  has  been  ascertained,  is  that  at  the  time,  or 
before  anj'  payment  has  been  made,  the  bonds  should  be  produced 
and  canceled,  if  paid  in  full,  or  credited  on  their  face  with  the  amount 
paid.  It  would  be  the  duty  of  the  court  to  secure  this  protection 
against  further  liability  to  the  company."- 

Ilad  the  sixty-five  promissor}-  notes  in  the  present  case  been  owned 
by  sixty-five  different  persons  instead  of  three,  and  the  owner  of  one 
had  brought  an  action  to  foreclose,  making  the  remaining  sixtj'-four 
l^arties  defendant,  the  very  necessity  of  the  case,  if  the  claim  of  the 
defendant  is  well  made,  would  have  required  sixtj'-four  cross-petitions 
in  that  action.  To  avoid  this  verj-  condition  of  things,  by  providing 
adequate  means  of  relief  to  all  the  parties  in  interest  b}-  an  action 

>  Code,  $  27,  Coe  -'.  The  C.  P.  &  I.  R.  R.  Co.,  lo  O.  S.  372;    Pom.  on  Remedies,  $  174. 
=  Coe  V.  C.  P.  &  I.  R.  R.  (1S59),  10  Ohio  St.  372,  410. 


572  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROTTGMT. 

less  cumbersome  and  less  expensive  in  the  name  of  a  common 
trustee,  was  a  leading  object  of  the  provisions  of  the  code  regulating 
parties  to  a  civil  action. i 

The  judgment  of  the  district  coicrt  is  reversed  and  that  of  the  com- 
V1071  pleas  affirmed.- 


SNIDER  V.  ADAMS   EXPRESS    COMPANY. 

Supreme  Court  op  Missouri,  April  Term,  1883. 

\j-j  Mo.  523.] 

This  was  a  suit  by  Henry  J.  Snider  to  recover  damages  for  failure 
to  deliver  money  alleged  to  have  been  placed  in  the  care  of  the 
express  company  for  transportation. 

At  the  trial  plaintiff  gave  evidence  tending  to  show  that,  as  agent 
for  his  brother  Andrew  Snider  and  his  sister  Louisa  J.  Snider  and 
several  other  persons,  he  sold  a  tract  of  land  and  received  the 
purchase  money;  that  he  divided  this  money  according  to  the  interest 
of  each,  put  the  share  of  each  into  an  envelope  by  itself,  marking  the 
envelope  with  the  name  of  the  owner,  and  placed  them  all  in  a  large 
envelope;  that  he  then  deposited  the  latter  with  the  express  company 

'  A  part  of  the  opinion,  discussing  the  corporate  power  of  the  g^as  company  to  mortgage 
its  property,  aad  the  execution  of  the  mortgage,  is  omitted. 

"  Compare  White.,  Trustee,  v.  Allatt  (1890),  87  Cal.  245.  [Action  to  foreclose  a  mortgage 
given  to  secure  the  payment  of  three  promissory  notes.]  Said  the  Court,/fr  Gibson,  C. 
(p.  246):  "  The  complaint  alleges  that  the  three  notes  set  out  in  it  were  made  and  delivered 
to  the  plaintiff,  by  the  defendants,  together  with  the  mortgage  in  suit  to  secure  their  pay- 
ment, and  that  the  plaintiff  is  the  owner  and  holder  of  the  notes  and  mortgage  as  trustee 
for  the  beneficiaries.,  '•all  the  heirs  at  law  of  B.  F.  White.,  deceased,''  while  the  notes 
themselves  show  that  they  were  made  to  the  iilaintiff  '■as  trustee  of  the  estate  of  B.  F. 
White.,  deceased.''  These  two  allegations  are  said  to  be  inconsistent,  because  the  identity 
of  the  plaintiff,  as  trustee  for  several  particular  persons  described  as  heirs  at  law  of  B.  F. 
White,  deceased,  is  different  from  that  of  trustee  of  the  estate  of  the  same  decedent. 

"  But  this  inconsistency  is  more  apparent  than  real.  It  is  true  that  in  the  latter 
capacity,  if  he  were  trustee  of  the  whole  estate,  he  would  not  only  represent  the  heirs,  but 
the  legatees,  devisees,  and  creditors,  if  any,  as  well;  while  in  the  first  mentioned  capacity, 
he  \vould  simply  represent  the  persons  named  as  beneficiaries.  This  makes  it  appear  that 
the  first  allegation  is  more  extensive  in  scope  than  the  second,  and  that  it  is  not  repugnant 
to  the  latter.  The  notes  sued  on  are,  however,  the  principal  contract,  to  which  the  mort- 
gage is  but  an  incident;  and  as  it  clearly  appears,  from  the  notes  themselves,  that  they 
■were  made  to  the  plaintiff  for  the  benefit  of  'the  estate  of  B.  F.  White,  deceased,'  he 
must  be  regarded  as  a  trustee  for  that  estate.  These  facts  are  material  and  controlling,  in 
view  of  which,  the  averment  of  ownership  of  the  notes  .ind  mortgage  as  trustee  of  the 
heirs  of  said  decedent  becomes  immaterial  and  redundant  matter,  and  as  such,  must  be 
disregarded. 

"•  By  taking  the  notes  and  mortgage  in  his  own  name,  for  the  benefit  of  the  estate  of 
the  decedent  above  named,  he  became  the  trustee  of  an  express  trust,  and,  as  such,  may 
maintain  this  suit,  without  joining  with  him  the  persons  for  whose  benefit  the  action  is 
prosecuted.  Code  Civ.  Pro..,  ^  369;  Bliss,  Code  Pleading.,§  262;  SchoviXcr,  Exectitors  and 
Administrators ,  ^  292;  Pomeroy,  Remedies  and  Remedial  Rights,  '§.  175,  This  is  one  of  the 
exceptions  to  the  rule,  declared  in  ij  367  of  the  Code  of  Civil  Procedure,  that  every  action 
must  be  prosecuted  in  the  name  of  the  real  party  in  interest.''  — Ed. 


SNIDER  :-.  ADAMS  EXPRESS  COMPANY.  573 

with  directions  to  deliver  the  same  to  said  Andrew  vSnider,  taking  a 
receipt  in  the  usnal  form  and  paying  charges  of  transportation  with 
money  reserved  out  of  the  fund;  that  all  the  beneficiaries  lived  in  the 
same  town;  that  the  package  was  duly  delivered  to  the  said  Andrew, 
but  upon  being  opened  the  envelope  containing  the  share  of  said 
Louisa  was  found  to  be  missing.     This  was  the  money  sued  for. 

The  court  sustained  a  demurrer  to  this  evidence,  and  plaintiff  took 
a  non-suit  with  leave  to  move  to  set  the  same  aside.  In  due  time 
this  motion  was  made  and  overruled,  and  plaintiff  brought  this 
appeal. 

E.  E.  Kimball  and  E.  J.  Smith,  for  appellant. 

Blair  &  Perry,  for  respondent.' 

Sherwood,  J. — The  controlling  question  in  this  case  is,  whether 
the  plaintiff  is  the  proper  party  to  sue,  the  answer  denying  that  he  is 
the  proper  party. 

It  is  quite  clear  from  the  testimony,  that  the  plaintiff  was  acting  as 
the  agent  of  his  sister,  Louisa  J.  Snider,  in  collecting  and  forwarding 
the  money  arising  from  the  sale  of  her  interest  in  the  land.  The 
contract  with  the  defendant  company,  for  the  transmission  of  the 
money,  for  the  loss  of  which  suit  is  now  brought,  was  made  by- 
plaintiff,  in  his  own  name,  without  mention  of  any  one  as  beneficiary 
of  such  contract.  If  so,  then  it  was  competent  for  the  agent,  with, 
whom  the  contract  was  actually  made,  to  sue  in  his  own  nr.me,  or  for 
his  inidisclosed  principal,  with  whom  in  point  of  law  the  contract  was 
made,  to  sue  in  her  own  name.- 

In  Blanchard  v.  Page,  8  Gray,  281,  the  same  view  as  that  just  an- 
nounced is  stated,  and  it  is  there  held,  after  an  extensive  and  elab- 
orate review  of  the  authorities,  by  Shaw,  C.  J.,  that  a  consignor  was 
a  proper  party  to  sue,  though  having  neither  a  general  nor  special 
property  in  the  goods. 

But  it  is  urged  that  under  the  Code  the  action  must  be  "prosecuted 
in  the  name  of  the  real  party  in  interest."  R.  S.  1879,  §  3462.  But 
there  are  exceptions  to  this  rule,  expressly  made  in  the  section  quoted, 
and  set  forth  in  the  section  following.  Among  those  exceptions  is 
that  of  a  trustee  of  an  express  trust,  who  may  sue  in  his  own  name, 
without  joining  with  him  the  person  for  whose  benefit  the  suit  is 
prosecuted.  In  the  language  of  the  section  referred  to,  "a  trustee  of 
an  express  trust,  within  the  meaning  of  this  section,  shall  be  con- 
strued to  include  a  person  with  whom,  or  in  whose  name,  a  contract 
is  made  for  the  benefit  of  another." 

It  is  claimed  b}-  counsel  for  defendant  that  there  is  no  express  trust 
in  the  case,  because  such  trust  must  point  out  with  precision  the 
subject,  the  persons,  and  the  purposes  of  the  trust,  can  not  be  proved 

•  The  arguments  are  omitted. 

2  Citing,  Cothny  v.  Fennell,  lO  B.  &  C.  671;  s.  c,  2t  E.  C.  L.  146;  Story  on  Agency, 
$$  160,  270,  and  cases  cited;  Ferris  v.  Thaw,  73  Mo.  446. 


574  IN    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

by  parol,  and  can  only  be  manifested  or  proved  by  some  writing. 
Whatever  of  truth  there  may  be  in  tliis  position  regarding  trusts  as 
to  realty,  it  is  not  true  regarding  personal  property;  for  such  property 
is  not  within  the  terms  of  the  statute,  and  such  trusts,  consequently, 
may  be  declared  and  proved  by  parol.  The  point  has  been  so  decided 
inferentially  in  England,  and  directly  decided  in  this  way  in  this 
country,     i  Perry  on  Trusts,  §  86,  and  cases  cited. 

But  we  need  not  search  the  text  books  in  the  endeavor  to  maintain 
in  the  present  instance  that  the  plaintiff  is  the  trustee  of  an  express 
trust,  since,  under  the  terms  of  the  statute,  the  circumstances  of  this 
case  endow  him  with  all  the  attributes  pertaining  to  that  character: 
(i)  He  is  the  person  with  whom,  or  in  whose  name,  the  contract  now 
in  suit  was  made.  (2)  He  made  the  contract  for  the  benefit  of  an- 
other, as  shown  by  the  evidence  adduced. 

It  was  held  at  an  early  day  in  this  State,  that  a  party  to  whom  a 
note  had  been  assigned  merely  for  the  purpose  of  collection,  was  the 
"real  party  in  interest,"  within  the  meaning  of  the  statute;  that  the 
assignment  created  in  the  assignee  the  legal  interest,  and  thereby  he 
became  the  proper  party  to  sue.  We6d  v.  Morgmi,  14  Mo.  429.  This 
ruling  was  followed  in  the  similar  case  of  Bcattie  v.  Lett,  28  INIo.  596, 
where  the  one  just  mentioned  was  approvingly  cited  and  followed, 
and  the  remark  made  that  the  assignees  had  the  right  to  maintain  an 
action  on  the  note  in  their  own  names,  "  because  they  were  the  trus- 
tees of  an  express  trust,  and  had  the  legal  title  to  the  note."  So,  also, 
in  Simmons  v.  Belt,  35  Mo.  461,  in  similar  circumstances,  the  above 
case  was  cited  with  approbation ;  and  in  Nicolay  v.  Fritschle,  40  INIo. 
67,  where  it  was  held  that  though  the  sum  mentioned  in  the  note  was 
not  due  the  plaintiff,  yet  that  he,  being  the  payee  mentioned  therein, 
having  possession  of  the  notes  and  the  legal  title  thereto,  had  such  an 
interest  as  authorized  him  to  sue;  that  if  the  notes  were  impressed 
with  a  trust  in  his  hands,  that  trust  could  subsequently  be  asserted ; 
that  the  fact  that  such  a  trust  existed  constituted  no  defence  to  the 
action ;  and  that  a  judgment  was  properly  rendered  as  if  for  want  ot 
an  answer,  where  the  answer  set  up  the  facts  aforesaid. 

Now,  if  a  contract  originally  made  in  the  name  of  another,  b}'  an 
an  assignment  thereof,  which  confers  no  beneficial  interest — which 
makes  the  party  to  whom  made  the  mere  naked  depository  of  the 
legal  title — can  endow  the  assignee  with  rights  as  the  real  party  in 
interest,  can  clothe  him  with  the  attributes  of  a  trustee  of  an  express 
trust,  assuredly  a  party  with  whom,  and  in  whose  name,  the  contract 
was  originally  made,  for  the  benefit  of  another,  should  encounter  no 
legal  obstacle  in  maintaining  an  action  in  his  own  name  on  the  con- 
tract thus  made.  And  so  the  point  has  been  ruled;  as  in  the  case 
where  a  written  contract  was  made  with  an  administrator  of  an 
estate,  and  upon  his  resignation  as  such,  action  being  brought  hy  the 
administrator  de  bonis  non,  it  was  ruled  that  under  the  new  code  of 


SNinKU  :•.  ADAMS  KXPRICSS  COMTANV.  oTo 

procedure,  the  contract,  if  made  with  the  original  administrator  for 
the  benefit  of  the  estate,  he,  as  the  trustee  of  an  express  trust,  was 
the  proper  party  to  sue.  Hanicy  v.  DiUcher  [1851],  15  Mo.  89.  And 
in  Rogers  v.  Gosncll,  51  Mo.  466,  it  was  held,  that  under  the  statute 
the  party  in  whose  name  the  contract  was  made,  for  the  benefit  of  an- 
other, might  maintain  action  upon  it,  being  the  trustee  of  an  express 
trust,  and  that  the  beneficiary  might,  also,  do  the  like,  as  a  recovery 
by  either  would  be  a  bar  to  another  action  by  the  other.' 

It  only  remains  to  say  that  the  plaintiff"  can  maintain  his  action. 
Therefore,  Judgment  reversed  and  cause  remanded:- 

All  concur. 

'  See  .-ilso.  Bliss  on  Code  Plead.,  %  45,  46. 

••'See  also  Arcade  Hotel  Co.  r.  Wialt  (1SS5),  i  Ohio  C.C.  55.  [W.,  while  a  j^uest  at  a  hotel, 
deposited  with  the  clerk  .f2,i95  for  safe  keepint?.  The  clerk  lied  with  tlie  money.  The 
hotel  company  refused  to  reimburse  W.  He  sued  in  his  own  name  as  owner.  It  appeared 
that  the  money  was  in  his  possession  as  trustee  and  not  in  his  own  right.  There  was 
nothing-  in  writing  evidencing  a  trust.  The  defendant  insisted  that  W.  could  not  sue 
under  the  code.]  Said  the  Court,  per  Cox,  J.:  "  It  is  claimed  that  to  constitute  an  express 
trust  there  must  be  an  instrument  in  writing  declaring  the  trust.  But  this  is  not  required 
in  this  state.  The  authorities  are  numerous,  that  an  express  trust  (.  Te  created  by  parol. 
'A  deed  absolute  on  its  face  may  be  shown  in  fact  to  be  a  trust  ..^  ,)aroI.'  Mathews  v. 
Zf«ma;i  [1874],  24  O.S.  623.     [Compare  Perry,  rrK.-:;.?,  V^  7S  <•' •«<■?•] 

"  Authorities  are  cited  to  show  that  when  an  agent  has  lost  or  deposited  money  or  other 
property,  an  action  to  recover  the  same  may  be  brought  in  the  name  of  the  principal. 
There  is  no  doxibt  of  this  proposition,  and  when  the  agent,  or  party,  or  possessor,  brings 
his  suit,  the  real  owner  is  the  real  party  to  this  extent,  that  any  offset  or  claim  in  the  funds 
which  the  defendant  may  have,  may  be  worked  out  against  him  through  the  agent.  But 
this  right  of  the  principal  to  sue  is  for  him  to  assert,  and  not  for  a  third  person. 

"The  general  rule  is  well  stated  by  Bayley,  J., in  Sargent  v.  Morris  [1820], 3  Barn,  and 
Aid.,  277,  2S0,  as  follows:  '  Now,  I  take  the  rule  to  be  this;  if  an  agent  acts  for  me  and  on 
my  behalf,  but  in  his  own  name,  then,  inasmuch  as  he  is  the  person  with  whom  the  con- 
tract is  made,  it  is  no  answer  to  an  action  in  his  name,  to  say,  that  he  is  merely  an  agent, 
unless  you  can  show,  also,  that  he  is  prohibited  from  carrying  on  that  action  by  the  person 
in  whose  behalf  the  contract  was  made.  In  such  cases,  however,  you  may  bring  your 
action,  either  in  the  name  of  the  party  by  whom  the  contract  was  made  or  of  the  party  for 
whom  the  contract  was  made.'    Our  code  is  substantially  the  adoption  of  this  principle. 

"  In  Nixon  i\  Nixon,  21  O.  S.  114,  where  a  party  contracted  to  deliver  from  fifty  to  one 
hundred  hogs,  and,  on  bringing  suit  to  recover  for  the  value,  it  appeared  that  he  only 
owned  thirty-nine  of  them,  the  rest  belonging  to  other  parties,  the  court  say:  '  If  the 
plaintiff  had  the  right  to  tender  the  hogs,  on  the  contract,  so  that  by  accepting  them  the 
defendant  would  have  acquired  a  good  title,  the  fact  that  the  plaintiff  was  the  absolute 
owner  of  only  a  part  of  them,  the  remainder  having  been  furnished  to  him  by  third  per- 
sons for  such  deliverv,  would  neither  constitute  a  defence  or  a  demand  for  damages.' 

"  And  in  Davis  v.  Harness,  38  O.  S.  397,  which  was  a  similar  case,  for  a  delivery  of  corn 
of  which  the  plaintiff  was  the  owner  of  only  a  part,  but  which  he  had  sold  with  the  con- 
sent of  the  other  owners,  the  court  say:  '  A  party  entering  into  a  contract  in  his  own 
name  may  sue  or  be  sued  upon  it,  whether  he  be,  in  fact,  agent  or  principal.'  The  same 
principle  is  also  held  in  GarJ  v.  Neff,  39  O.  S.  607."  — Ed. 


576 


IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 


PLATT  AND  ANOTHER  v.  THE  IRON  EXCHANGE  BANK. 

Supreme  Court  of  Wisconsin,  November  15,  1S92. 

[83  W/s.  358.] 

The  complaint  alleges  that  the  plaintiffs  were,  at  the  times  named, 
and  are,  co-partners,  doing  business  under  the  firm  name  of  the 
United  States  Express  Company ;  that  other  persons  were  and  are  as- 
sociated with  them  as  dormant  partners  ;  that  such  dormant  partners 
are  very  numerous  and  reside  far  apart,  and  that  it  is  impracticable  to 
bring  them  all  before  the  court ;  that  the  plaintiffs  sue,  not  only  for 
the  benefit  of  themselves,  but  for  all  of  such  dormant  partners; 
that  as  such  partners,  the  plaintiffs  were,  at  the  times  named, 
and  are  engaged  in  the  business  of  common  carriers,  as  an  express 
company,  carrying  property  and  parcels,  including  money,  from 
place  to  place  in  the  United  States,  and  delivering  the  same  to  the 
persons  to  whom  the  same  may  have  been  consigned ;  that  on  Sep- 
tember 20,  1889,  the  said  plaintiffs,  as  such  co-partners  and  as  such 
common  carriers,  had  in  their  possession  $41,700,  having  carried  the 
same  from  Ashland  to  Hurley,  and  there  deposited  the  same  in  the 
defendant  bank  for  safe  keeping;  that  the  defendant  negligently 
allowed  said  money,  and  all  of  it,  to  be  stolen  from  said  bank,  for 
which  amount  the  plaintiffs  claim  damages. 

To  this  complaint  the  defendant  demurred  on  the  ground  that  there 
is  a  defect  of  parties  plaintiff,  by  the  nonjoinder  of  said  dormant  part- 
ners.    From  an  order  overruling  said  demurrer  the  defendant  appeals. 
Q?(arles,  Spence  &  0?iarles,  for  appellant. 

Winkler,  Flanders,  ^Smith,  Bottum  &  Vilas,  and  W.  K.  Gibson,  for 
respondents. 

Cassoday,  J. :— It  sufficiently  appears  from  the  complaint  that  the 
.  plaintiffs,  Piatt  and  Crosby,  are  the  ostensible  partners,  and  that  all 
the  other  partners  not  joined  as  plaintiffs  are  dormant  partners.  It  is 
well  settled  at  common  law  that  a  dormant  partner  need  not  be  joined 
with  his  co-partners  in  an  action  to  recover  partnership  demands. 1 
Whether  such  action  was  brought  in  the  name  of  the  ostensible  part- 
ners alone  or  in  the  name  of  all  the  partners,  the  same  was  without 
prejudice  to  any  defence  by  way  of  setoff  or  otherwise.  Hillikcr  v. 
Loop,  5  Vt.  116.  A  dormant  partner  is  one  who  takes  no  active  part 
in  the  business  of  the  firm,  and  whose  name  does  not  appear  in  the 
title  of  the  partnership,  and  who  is  unknown  to  those  who  give  credit 
to  the  firm.  17  Am.  &  Eng.  Ency.  of  Law,  928.  The  rea.son  why  such 
dormant  partners  were  unnecessary  parties  plaintiff  seems  to  have  been 
that  the  contract  or  transaction  was,  so  far  as  the  defendant  was  con- 

^Citing,  Bird  v.  Fake,  i  Pin.  B90 ;  Lloyd  v.  Archbowle,  2  Taunt.  324 ;  Clark  v.  IMiller, 
4  Wend.  628;  Shropshire  f.  Shepperd,  3  Ala.  733;  Hilliker  v.  Loop,  5  Vt.  116;  Wood  r. 
O'Kelley,  8  Gush.  406;    Waite  V.  Dodge,  34  Vt.   181  ;    Garrett  -v.  Muller,  37   Tex.  589. 


PLATT  AXD  AXOTHIvR  :'.  THK  IRON  EXCHANGE    BANK.  57? 

cerned,  with  such  ostensible  partners  alone,  and  without  reference  to 
such  dormant  partners. 

There  is  nothing  in  the  Code  to  take  avva}-  the  force  of  such  reason- 
ing. On  the  contrar}-,  it  is  expressly  provided  that  "  a  trustee  of  an 
express  trust  .  .  .  may  sue  without  joining  with  him  the  person 
for  whose  benefit  the  action  is  prosecuted.  A  trustee  of  an  express 
trust,  within  the  meaning  of  this  section,  shall  be  construed  to  in- 
clude a  person  with  whom  or  in  whose  name  a  contract  is  made  for  the 
benefit  of  another."  R.  S.,  sec.  2607.  Thus  it  has  repeatedly  been 
held  that  a  consignor  or  shipper  is,  by  operation  of  the  rule,  regarded 
as  a  trustee  of  an  express  trust,  like  a  factor  or  other  mercantile  agent 
who  contracts  in  his  own  name  on  behalf  of  his  principal,  and  hence, 
though  not  the  owner,  maj-  sue  the  carrier  for  injury  to  or  loss  of  the 
goods  shipped  during  their  transportation. i  In  DeWit  v.  Lander,  jz 
Wis.  120,  an  ostensible  partner  was  not  joined,  and  hence  the  case  is 
distinguishable.  The  same  principles  have  been  recognized,  if  not 
held,  as  applicable  to  the  nonjoinder  of  dormant  partners.'-^  One  or 
two  cases  are  cited  from  the  inferior  courts  of  New  York,  which 
seem  to  justify-  the  contention  of  the  defendant;  but  we  think 
it  was  not  intended  bj-  the  Code  to  work  such  change  in  the  rules  of 
pleading. 

Here  the  money  was  deposited  in  the  bank  by  the  plaintiffs,  as  the 
only  ostensible  partners  doing  businCvSS  in  the  firm  name  mentioned. 
As  such  ostensible  partners  they  were  certainly  trustees  and  agents  of 
such  dormant  partners.  The  defendant  accepted  the  monej-  from  such 
ostensible  partners,  and  without  reference  to  such  dormant  partners. 
The  defendant  is  answerable,  therefore,  if  answerable  at  all,  to  the 
plaintiffs,  from  whom  it  received  the  mone}-. 

By  the  Court. — The  order  of  the  Circuit  Court  is  afiirmed. 

» Citing,  Hooper  v.  C.  &  N.  W.  R.  Co.,  27  Wis.  91  ;  Waterman  v.  C,  M.  &  St.  P.  R.  Co., 
61  Wis.  464;  Salter  w.  Krueger,  65  Wis.  217, 

^Citing,  North  v.  Bloss,  30  N.  Y.  374 ;  Howe  v.  Savorj',  49  Barb.  403;  Nat.  Bank  v. 
Thomas,  47  N,  Y.  19 ;  Leslie  v.  Wiley,  47  N.  Y.  64S  ;  Marvin  v.  Wilber,  52  N.  Y.  373. 


578  IN  WHOSE  XAME  THE  ACTION  SHOULD  BE  BROUGHT. 

CARD  r.  XEFF. 

Supreme  Court  of  Ohio,  January  Term,  1884. 

[39  O.  S.  607.] 

Error  to  the  District  Court  of  Clarke  Count}-. 

On  December  i,  1871,  Eli  J.  Card  as  principal,  and  Benj.  M.  Gard  as 
suret3%  gave  to  Adam  Neff,  the  guardian  of  Edgar  J.  Barr,  a  minor, 
their  promissory  note  of  the  following  tenor : 

"  $500.  One  year  after  date,  we,  or  either  of  us,  promise  to  pay  to  Adam. 
Neff,  guardian  of  Eugene  J.  Barr,  or  order,  the  sum  of  five  hundred  dol- 
lars, -with  interest  from  date  at  the  rate  of  8  per  cent,  per  annum.  Value 
rec'd.     Interest  payable  annually.    Dec.  ist,  A.  D.  1871. 

"  E.  J.  Gard, 
"B.  M.  Gard." 

On  May  17,  1875,  NefF,  being  still  such  guardian,  commenced  an  action 
in  the  court  below  upon  this  note,  describing  himself  in  his  petition 
as  such  guardian,  alleging  the  minority  of  his  ward,  his  own  guard- 
ianship, the  non-payment  of  the  note,  except  certain  credits,  and  pray- 
ing judgment  upon  it. 

Upon  the  plaintiff's  ward  attaining  his  majority,  the  defendants 
filed,  upon  leave,  a  joint  supplemental  answer  alleging  this  fact  and 
praying  that  the  action,  for  that  reason,  be  dismissed.  The  plaintiff's 
demurrer  to  this  pleading  was  sustained  and  the  defendants  excepted.^ 

Kiefer  &  Whiie,  for  plaintiff  in  error. 

George  Spence  and  /.  K.  Mower,  for  defendant  in  error. 

Owen,  J. — Was  there  error  in  holding,  by  sustaining  the  demurrer 
to  the  supplemental  answer,  that  the  coming  to  his  majorit}'  by  the 
ward  of  Neff  was  no  ground  for  dismissing  the  action?  The  proposi- 
tions contended  for  by  the  plaintiff  in  error  are,  that  the  note  in  suit 
was  a  contract  for  the  ward;  that  the  proceeds  belonged  to  him;  that 
the  beneficial  interest  was  his ;  that  Neff  is  named  in  the  note  and  the 
suit  because  of  the  disability  of  the  ward  to  contract  or  sue;  that  upon 
the  ward  coming  to  his  majority,  the  disabilit}'  and  the  guardianship 
at  once  determined,  and  with  them  the  right  of  the  plaintiff  further  to 
prosecute  the  action. 

We  are  not  called  upon  to  consider  the  respective  relations  which 
the  guardian  and  the  ward  sustained  to  this  note  or  its  proceeds,  nor 
to  consider  the  power  of  the  guardian  to  bind  his  ward  by  the  act  of 
taking  the  note,  or  of  bringing  suit  upon  it;  for  if  he  had  no  such 
power,  there  clearly  was  no  error;  and  if  the  position  contended  for  is 
sound,  the  form  of,  and  parties  to  the  action  were  abundantly  pro- 
vided for  b}'  sections  25  and  27  of  the  Code  of  Civil  Procedure,  which 
provided  that  every  action  must  be  prosecuted  in  the  name  of  the  real 

'The  statement  of  facts  has  been  abridg^ed. 


W  IvT.MORli;  :'.  IIEC.ICMAX.  ;')7(» 

])art3-  in  interest,  except  tliat  a  i)er.son  iknth  -whoin  or  in  whose  name  a 
contrael  is  made  for  the  (>eiiejit  of  another  .  .  may  bring  an  action 
without  joining  with  him  the  person  for  whose  benefit  it  is  prose- 
cuted. The  ])n)niise  of  the  defendants  was  to  pay  Neff,  who  was 
named  as  guardian  ;  the  action  was  by  Neff  as  plaintiff,  although  de- 
scribed as  guardian.  I  lis  right  to  "  prosecute  "  the  action  was  clear, 
and  no  error  intervened  in  the  refusal  to  dismiss  the  action  or  order 
its  abatement  upon  the  ward  reaching  his  majority.' 

Judgment  affirnied:- 


WETMORE  V.  HEGEMAN. 

Court  of  Appeals  of  New  York,  February  7,  1882. 

[88  N.  Y.  69.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Siipreme  Court, 
affirming  a  judgment  in  favor  of  the  plaintiff,  entered  upon  a  verdict. 

The  nature  of  the  action  and  the  material  facts  appear  in  the 
opinion. 

Samuel  Hand,  for  appellant. 

William  Allen  Butler,  for  respondent.'^ 

Earl,  J. — The  merits  of  the  original  action  are  not  involved  upon 
this  appeal.  It  is  not  disputed  that  the  amount  reported  b}-  the 
referee  in  that  action  is  due  from  the  defendant  to  some  one  ;  but  the 
claim  made  on  his  behalf  is  that  it  is  not  due  to  the  plaintiff,  and  this 
claim  will  be  first  considered. 

The  original  claim  was  for  money  due  to  the  firm  of  Campbell  & 
Moody,  who  were  the  original  plaintiffs  in  the  action,  from  Charles 
Kelsey,  who  was  the  original  defendant.  The  money  claimed  in  the 
action  was  due  upon  a  contract  between  Campbell  &  Mood}'  of  the  one 
part  and  Kelsey  of  the  other.  The  action  was  commenced  in  June, 
1855.  Prior  to  that  time  Campbell  &  Moody  had  assigned  to  John  S. 
Gilbert  their  claim  against  Kelsey  under  their  contract  with  him,  to 
secure  Gilbert  for  a  certain  indebtedness  w^hich  they  owed  him.  There- 
after, and  in  Januarj',  1865,  Gilbert,  for  a  good  and  valuable  consider- 
ation, assigned  all  his  claims  against  Campbell  &  Mood}^  to  James  ]\I. 
Blackvvell.  Afterward  a  receiver  of  the  assets  of  the  firm  Campbell  & 
INIoody  was  appointed,  and  he,  under  authority  of  the  Court,  assigned 
the  claim  of  Campbell  &  ^Nloodj-  against  Kelsey,  which  was  invohed 
in  the  original  action,  to  James  M.  Blackwell,  and  thus  he,  Blackwell, 
became  vested  with  the  entire  legal  title  to  the  claim.  Afterward 
Blackwell  died,  and  his  administratrix  assigned  the  claim  to  the  pres- 

*Part  of  the  opinion,  on  another  point,  is  omitted. 
^Compare  Reed  v.  Lane  (iSqs),  96  Iowa  454.         — Ed. 
2The  arguments  are  omitted. 


5S0  IN   WHOSE    NAME   THE   ACTION   SHOULD    BE    BROrOHT. 

ent  plaintiff,  Wetmore,  and  thus  the  legal  title  to  the    claim  became 
vested  in  him. 

It  appears  that  Blackwell  took  the  assignment  from  Gilbert  and 
from  the  receiver  at  the  instigation  and  request  of  Therasson  & 
Br^-an,  a  firm  of  lawyers  ;  and  that  he  took  and  held  the  claim  ex- 
pressly in  trust  for  them,  he  having  no  interest  therein  except  as 
such  trustee.  It  also  appeared  that  the  assignment  from  Blackwell's 
administratrix  to  this  plaintiff  was  made  at  the  request  and  instig- 
ation of  Therasson  &  Brj^an,  and  for  their  benefit,  and  that  the 
plaintiff  took  the  assignment  to  himself  and  holds  the  claim  expressly 
in  trust  for  them. 

The  title  of  the  plaintiff,  therefore,  for  the  purposes  of  this  action,  is 
just  as  valid  and  effectual  for  every  purpose  as  if  he  held  the  claim 
absolutely  in  his  own  right.  The  title  has  been  placed  in  him  by  the 
only  persons  interested  therein  against  the  defendant.  Recovery  by 
him  and  payment  to  him  will  be  an  absolute  protection  to  the  de- 
fendant, and  that  is  all  he  can  require.  He  alleges  no  equities,  set- 
off, or  counterclaims  against  Therasson  «&  Bryan,  and  hence  their  ab- 
sence as  parties  to  the  action  can  in  no  way  harm  or  embarrass  him. 
The  plaintiff  is,  therefore,  within  the  meaning  of  section  1 1 3  of  the 
Code  of  Procedure,  a  trustee  of  an  express  trust,  and  can,  therefore, 
maintain  this  action  without  joining  with  himself  the  persons  bene- 
ficially interested  in  the  claim.i 

It  is,  however,  objected  on  the  part  of  the  defendant  that  as  Black- 
well  held  the  claim  upon  an  express  trust  for  Therasson  &  Brv-an,  it 
did  not  pass  to  his  administratrix,  and  hence  her  assignment  to  the 
plaintiff  at  the  request  and  upon  the  procurement  of  Therasson  & 
Bryan  did  not  pass  to  him  any  title.  This  claim  is  not  well  founded. 
This  trust  did  not  devolve  upon  the  Supreme  Court  upon  the  death 
of  Blackwell,  as  claimed  by  the  counsel  for  the  appellant.  It  was  a 
tru.st  pertaining  to  personal  property,  and  it  is  well  settled  that  the 
legal  title  to  the  property  upon  the  death  of  the  trustee  in  such  a 
case  passes  to  the  legal  representatives  of  the  trustees.  Bimn  v. 
Vatighan,  5  Abb.  Pr.  N.  S.  269;  Emerson  v.  Bleaklcy,  id.  350;  Boo7ie  v. 
Citizens'  Savings  Bank,  84  N.  Y.  83.  Under  these  authorities  it  is 
clear  that  the  administratrix  of  Blackwell  could  transfer  the  legal  title 
to  this  claim  of  the  plaintiff,  and  as  the  transfer  was  made  by  the  pro- 
curement and  upon  the  request  of  the  sole  beneficiaries  under  the 
-  trust,  no  question  whatever  can  be  made  that  the  plaintiff  had  a  per- 
•  feet  title  and  has  a  sufl&cient  standing  to  enable  him  to  maintain  this 
action.'- 

All  concur.  Judgment  affirmed. 

>  Citing^  Considerant  v.  Brisbane,  22  N.  Y.  389;  Allen  v.  Brown,  44  id.  228;  Greene  t\ 
The  Niagara  Fire  Ins.  Co.,  6  Hun  12S;   Cummins  r.  Barkalow,  i   Abb.  Ct.  App.  Dec.  479. 

2  The  further  point  was  made  that  Therasson  &  Bryan,  in  procuring-  the  title  of  this 
claim  to  be  placed  in  the  name  of  Blackwell,  and  afterward  in  the  name  of  the  plaintifl, 


WYNNE  V.  HECK.  581 


WYNNE  V.  HECK. 

Supreme  Court  oe  North  Carolina,  February  Term,  1885. 

[92  iV.  C.  414.] 

Civil  action  tried  on  the  report  of  a  referee,  and  the  exceptions  filed 
thereto.  The  Court  adopted  the  findings  of  fact  and  aflQrmed  the  con- 
clusions of  law  of  the  referee,  overruled  the  plaintiff's  exceptions, 
and  adjudged  the  action  be  dismissed.  From  this  judgment  the  plain- 
tiff appealed. 

Messrs.  Gray  &  Stamps  and  Annistead  Jo7ics,  for  plaintiff. 

Messrs.  Pace  &  Holding,  for  defendant. 

IMerrimon,  J. — The  plaintiff  alleged  in  his  complaint  that  the  de- 
fendant was  indebted  to  him  on  sundry  accounts  in  the  sum  of  $679. 
48.  This,  the  defendant,  in  his  answer,  denied,  and  thus  it  became 
necessary  for  the  plaintiff  to  establish  his  alleged  debt  by  proper 
proof. 

By  consent  of  the  parties,  the  whole  matter  in  contention  was  re- 
ferred, under  the  code  of  civil  procedure,  with  instructions  to  the 
referee  to  report  his  findings  of  law  and  fact.  The  referee  among 
other  things,  reported  as  follows  : 

"  Prior  to  the  commencement  of  this  action,  E.  R.  Stamps,  an  attor- 
ney at  law,  had  certain  claims  against  the  plaintiff  in  his  hands  for 
collection,  and  presented  the  same  to  him  for  payment,  who  thereupon 
transferred  to  the  said  Stamps  the  account  on  which  this  action  is 
brought,  for  collection,  it  being  agreed  between  them  at  the  time,  that 
said  Stamps  should  collect  the  same  and  apply  the  proceeds  to  the 
claims  so  held  by  him  for  collection  against  the  said  Wynne. 

"  The  plaintiff  can  not  maintain  this  action,  but  it  should  have 
been  brought  in  the  name  of  the  said  E.  R.  Stamps  as  trustee  of  an 
express  trust." 

Upon  these  findings  the  court  held,  and  we  think  properl}-,  that  the 
plaintiff  could  not  recover.  It  is  obvious  that  the  plaintiff  sold  and 
transferred  his  debt  against  the  defendant  to  E.  R.  Stamps,  upon  the 
express  trust  that  he  should  collect  the  same,  and  apply  the  money 
when  collected  to  the  pa^-ment  of  the  debts  he,  as  attorney,   held 

violated  the  section  of  the  Revised  Statutes  (2  R.  S.  2S8,  §  71)  which  provides  that  "  no  at- 
torney, counselor,  or  solicitor  shall  directly  or  indirectly  buy,  or  be  in  any  manner  inter- 
ested in  buying,  any  bond,  bill,  promissory  note,  bill  of  exchange,  book  debt,  or  other 
thing  in  action  with  the  intent  and  for  the  purpose  of  bringing  any  suit  thereon."  But 
the  Court  was  of  opinion  that  in  the  circumstances  of  the  case  there  \vas  no  violation  of 
this  statute.  "  The  facts  admitted  in  the  pleadings  and  proved  upon  the  trial  show  clearly 
that  this  claim  was  not  purchased  for  the  purpose  of  bringing  a  suit  thereon.  Before 
Thcrasson  &  Bryan  became  interested  therein  a  suit  had  been  instituted  upon  the  claim  by 
another  attorney,  and  that  suit  was  pending."  — Ed. 


5S2  IX  AVHOSE  NAME  TUK  ACTION'  SHOULD  BE  BROUGHT. 

against  the  plaintiff  for  collection.  The  trustee  had  the  ownership  of 
the  debt,  and  he  was  charged  by  the  trust  to  collect  it,  not  for  the 
plaintiff,  but  for  certain  of  his  creditors.  The  plaintiff  could  not  of 
right  reclaim  it,  nor  could  he  sell  or  dispose  of  it  to  another,  except 
subject  to  the  trust.  The  debt  belonged  to  Stamps  as  trustee  of  an 
express  trust.  The  Code,  sec.  177,  provides  that  the  action  must  be 
brought  in  the  name  of  the  party  in  interest,  unless  as  otherwise  pro- 
vided, and  section  179  provides,  that  the  trustee  of  an  express  trust 
may  sue  without  joining  with  him  the  person  for  whose  benefit  the 
action  is  prosecuted,  but  he,  in  such  case,  must  sue  alone,  or  join  the 
beneficiar}'  with  him.      Willey  v.  Gatling,  70  N.  C.  410. 

The  counsel  for  the  plaintiff  cited  and  relied  upon  Abrams  v.  Cnre- 
ton,  74  N.  C.  523.  That  case  is  not  like,  but  \&xy  different  from  this. 
In  this  case,  the  plaintiff  transferred  his  debt  to  the  trustee  for  a  valu- 
able consideration,  that  is,  that  the  trustee  would  collect  the  debt,  and 
with  the  money  paj-  certain  debts  owed  by  the  plaintiff  to  certain  per- 
sons. In  that  case  there  was  no  consideration.  Abrams  was  merel3'' 
an  agent  or  attorney,  who  undertook  to  collect  certain  notes  for  the 
owner  of  them,  who  did  not  part,  nor  intend  to  part,  with  the  owner- 
ship of  them. 

There  is  no  error,  and  the  judgment  miust  be  affirmed. 

No  error.  Judg^nent  affirmed. 


/ 


FERGUSON  7'.  ^IcMAHON. 

Supreme  Court  op  Arkansas,  November  Term,  1889. 

[52  Ark.  433.] 

John  T.  ^NIcMahon  brought  replevin  against  J.  T.  and  J.  N.  Fergu- 
son, to  recover  four  bales  of  cotton  which  he  claimed  as  agent  of 
Thomas  E.  McMahon,  under  a  mortgage  executed  to  the  latter  b}- 
Daniel  Dixon,  who  sold  the  cotton  to  the  defendants. 

One  of  the  instructions  given  to  the  jury  is  as  follow^s :  "  If  the 
jury  believe  from  the  evidence  that  one  Dan  Dickson  raised  the  cotton 
in  question,  and  that  he  had  mortgaged  the  same  to  Thomas  E.  Mc- 
Mahon, to  secure  a  debt,  and  that  said  debt  has  not  been  fully  paid ; 
that  said  mortgage  had  been  filed  or  recorded  before  the  purchase  of 
the  cotton  in  question  hy  the  defendants,  and  in  the  countj^  where 
said  cotton  was  grown,  then  you  will  find  for  the  plaintiff,  provided 
5-ou  find  that  the  plaintiff  was  the  agent  of  said  Thomas  E.  Mc- 
Mahon." 

The  verdict  and  judgment  were  for  the  plaintiff,  and  the  defendants 
appealed. 

Sec.  4936  Mansf  Dig.  is  as  follows :     "  An  executor,  administrator, 


FERGUSON  V.  M'MAHON.  5.S3 

guardian,  trustee  of  an  express  trust,  a  person  with  whom,  or  in 
whose  name,  a  contract  is  made  for  the  benefit  of  another,  or  the 
State,  or  any  officer  thereof,  or  any  person  expressly  authorized  by  the 
statute  to  do  so,  may  bring  an  action  without  joining  with  him  the 
person  for  whose  benefit  it  is  prosecuted." 

Atkinson,  Tompkins  &  Greeson,  for  appellant. 

C.  C.  Ihvnby,  for  appellee. i 

COCKRILL,  C.  J.— No  reason  is  disclosed  for  allowing  a  recovery  for 
the  benefit  of  Thomas  E.  ]\IcMahon  in  the  name  of  John  McMahon. 
He  is  not  a  trustee  for  Thomas  E. ;  the  mortgage  contract  was  not 
made  in  his  name;  nor  is  he  a  person  with  whom  the  contract  was 
made  and  therefore  entitled  to  sue  in  his  own  name,  within  the  mean- 
ing of  Sec.  4936  of  I\Iansf  Dig. 

It  is  true  that  the  plaintiff,  John  INIcMahon,  conducted  the  nego- 
tiations which  led  to  the  mortgage,  and  also  directed  its  execution, 
but  he  is  not  a  party  to  the  instrument,  and  in  all  his  dealings  was 
only  the  agent  of  Thomas  E.  MclNIahon,  the  mortgagee.     An  agent 


? 


who  makes  a  contract  for  his  principal  in  the  principal's  name,  is  not 
in  any  legal  sense,  a  person  with  whom  the  contract  is  made  ;  the  con- 
tract in  such  a  case  is  with  the  principal  only,  and  he  alone  is  autho- 
rized to  enforce  it.  Bliss  on  Code  PI.,  §  56.  The  agent  in  such  a  case, 
has  not  necessarily  even  the  implied  authority  to  discharge  the  con- 
tract by  receiving  what  is  due  upon  it,  much  less  the  right  to  enforce 
paj-ment  by  suit.     iMcycr,  Bannervian  &  Co.  v.  Stone,  46  Ark.  210. 

The  Court  erred,  therefore,  in  instructing  the  jury  that  John  Mc- 
IVIahon  could  in  any  event  recover  the  property  in  dispute  upon  the 
faith  of  the  mortgage  executed  to  Thomas  E.  McMahon. 

If  John  McMahon  was  the  bailee  of  the  property,  or  had  a  special 
interest  in  it,  as  he  testified,  he  could  maintain  an  action  in  his  own 
name  against  one  who  wrongfull}'  deprived  him  of  the  possession. 
Bliss  Code  PI.,  on  supra.  But  the  evidence  was  conflicting  upon  that 
phase  of  the  case,  and  we  can  not  disregard  the  error  pointed  out. 

Reverse  the  judgment  and  remand  the  cause  for  a  new  trial  in  ac- 
cordance with  this  opinion. 2 

'The  arg-uments  are  omitted. 

2See  S-Mt/t  V.  Swift  (1S73),  46  Cal.  267:  "It  is  objected  that  the  judgment  is  errone- 
ous because  $2,000  of  the  money  sued  for  belonged  to  one  Ann  Reed.  We  think  the  ob- 
jection well  taken.  It  is  evident,  from  the  testimony  of  the  plaintiff,  that  in  loaning  this 
money  he  acted  as  the  agent  of  Ann  Reed,  and  loaned  the  money  as  her  money.  He  did 
not  pretend  to  be  acting  for  himself.  She  was  consulted,  and  directed  as  to  the  terms  of 
the  loan.  The  indebtedness  arose  to  her  then,  and  not  to  the  plaintiff.  The  indebtedness 
not  being  to  him,  of  course  the  plaintiff  could  not  sue  for  it." — Per  Belcher,  J. 

And  generally,  as  to  the  right  of  a  mere  agent  to  sue  in  his  own  name,  see  Crescent 
Furniture  Co.  t.  Raddatz  (1887),  28  Mo.  App.  210.  [Action  in  a  justice's  court  "  by  E.  G.  as 
agent  of  G.  R."]:  "  In  this  state  civil  actions  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  with  certain  statutory  exceptions.  Rev.  Stat.,  $$3462,3463.  These  excep- 
tions do  not  extend  so  far  as  to  allow  a  person  to  prosecute  an  action  in  his  own  name  as 
the  agent  of  some  other  person.  No  such  thing  is  known  to  our  remedial  system,  or  to 
any  other  remedial  system  with  which  we  are  acquainted.    A  trustee  of  an  express  trust 


584         IN  whose;  name;  the  action  should  be;  brought. 

SANDERSON  ET  AL.  r.  CERRO  GORDO  COUNTY. 

Supreme  Court  op  Iowa,  :\Iay  15,  1890. 
[So  lozva  89.] 

The  plaintiffs  are  the  ti-iicf^f>Q  ^rrl  |||^  ^jerk  of  Grant  township,  in 
the  defendant  county,  and  by  virtue  of  their  oiEces  they  constitute  the 
board  of  he^th  of  said  township. 

The  petition  shows  that  in  August,  18S6,  certain  inhabitants  in 
Grant  township  were  infected  with  smallpox  to  the  extent  that  the 
public  health  of  the  township  was  in  danger  ;  that,  to  make  suitable 
provision  against  such  danger,  the  plaintiffs,  as  a  board  of  health,  ap- 
pointed one  J.  R.  Jones  as  a  physician  for  the  board,  and  directed  him 
to  take  charge  of  the  matter,  and  adopt  such  measures  as  he  thought 
suitable  to  prevent  the  spread  of  the  disease  ;  that  Jones,  in  the  per- 
formance of  this  duty,  rendered  ser\aces  of  the  value  of  $170.50;  that 
the  plaintiffs,  in  their  capacity  as  trustees  and  clerk  of  the  township, 
levied  a  tax  of  $300  on  the  taxable  property  of  the  township  in  Sep- 
tember, 1886,  for  the  use  of  said  board  of  health  in  smallpox  matters, 
which  tax  was  collected  by  the  treasurer  of  the  county  and  paid  over 
to  Grant  township;  that  on  November  i,  18S6,  the  board  of  health  paid 
from  the  money  so  raised  the  amount  due  Jones  ;  that  the  claim  there- 
for was  filed  with  the  board  of  supervisors  of  the  defendant  county, 
and  by  it  refused.  The  petition  avers  that  the  plaintiffs  are  entitled 
to  recover  the  amount  for  the  use  of  the  board  of  health  of  said  town- 
ship, and  asks  judgment  accordingh'. 

To  this  petition  a  demurrer  was  filed,  and,  among  other  grounds,  it 
is  urged  that  the  plaintiffs  are  not  proper  parties  to  maintain  the  suit. 
The  district  court  sustained  the  demurrer,  and  from  a  judgment  for 
the  defendant  the  plaintiffs  appeal. 

John  Cliggit,  for  appellants. 

/.  y.  Clark,  County  Attorney,  for  appellee. 

Granger  J. — ^We  deem  it  unnecessan,'  to  refer  to  more  than  one 
ground  of  the  demurrer,  as  it  seems  decisive  of  the  case.  There  is  no 
pretense,  but  in  fact  it  is  expressly  urged,  that  the  suit  is  by  the 
plaintiffs  in  their  official  capacity,   "  for  the  use  and  benefit  of  the 

may,  under  '^  3463,  sue  in  his  own  name;  but  then  the  legal  title  and,  where  possession  is  in 
controversy,  the  right  of  possession,  if  any,  is  in  him,  and  not  in  the  beneficiaries  of  the 
trust.  ...  A  person  can  prosecute  or  defend  in  our  courts  either  in  person  or  by  attor- 
ney, and  in  justices'  courts  he  can  do  it  by  .an  agent  w^ho  is  not  an  attorney.  Rev.  Stat., 
$$2905,2908,2911.  But  where,  in  justices' courts,  he  prosecutes  by  agent,  the  proceeding 
must  run  in  the  name  of  the  principal,  just  as  in  a  court  of  record." — Per  Thompson,  J. 

See  also  Sandmeyer  v.  Dakota  F.  &  M.  Ins.  Co.  (1S91),  2  S.  D.  346,351.  Draper  v.  Farris 
(1893),  56  Mo.  417,  419.     Mitchell  v.  Si.  Mary  (1897),  '48  Ind.  in. 

Compare  Ludivig v.  Gillespie  (18S7),  105  N.  Y.  653,  ante  p.  227;  Melcher,as  Attorney  and 
Agent,  V.  Kreiser  (1S97),  21  Misc.  159,  ante  p.  22S;  S.  C, 28  App.  Div.  362,  ante  p.  230.   — Ed. 


LKWis  :'.  wiiiTTKN  irr  al.  585 

township,  or  for  the  local  board  of  health."  The  action  is  at  law,  and 
we  must  look  to  the  jjrovisions  of  the  statute  for  a  recognition  of  their 
right  to  bring  the  suit. 

Appellants  do  not  attempt  to  point  out  a  section  of  the  statute,  or  a 
decision,  as  authority  for  this  proceeding,  except  the  case  of  Lo7i^^  v. 
EmsUy,  57  Iowa  13,  wherein  it  was  held  that  a  townshijj  clerk  could 
maintain  a  suit  to  recover  money  to  which  he  was  entitled  by  virtue 
of  his  office,  such  as  road  funds  ;  but  the  facts  in  this  case  are  widely 
different.  We  know  of  no  law  giving  the  plaintiffs  the  right  to  receive 
and  hold  the  funds  in  question,  conceding  the  liability  of  the  county 
for  its  pajnnent.  The  code,  section  2543,  provides,  that,  "every  action 
must  be  prosecuted  in  the  name  of  the  real  party  in  interest,  except  as 
provided  in  the  next  section."  It  is  plain  that  the  plaintiffs  are  prose- 
cuting the  suit  in  a  representative  capacity,  and  we  inquire  if  they 
come  within  the  exceptions  of  section  2544.  It  provides :  "  An  exe- 
cutor or  administrator,  a  guardian,  a  trustee  of  an  express  trust,  a 
part}'  with  whom  or  in  whose  name  a  contract  is  made  for  the  benefit 
of  another,  or  a  party  expressly  authorized  by  statute,  may  sue  in  his 
own  name,  withoiit  joining  with  him  the  party  for  whose  benefit  the  suit 
is  prosecuted."  With  all  that  appellants  claim,  the  township  or  the 
board  of  health  must  be  held  as  the  real  party  in  interest.  Appellants 
sayThafnTe^  local  board  .  .  .  have  a  trust  capacity  "  which  entitles 
them  to  act.  If  it  is  true  that  they  have  as  to  the  funds  in  question — 
which  we  must  not  be  understood  as  holding — still  it  is  not  an  express 
trust,  but  one  clearly  arising  by  implication,  and  the  plaintiffs  are  not 
within  the  provision  of  the  statute.  We  think  it  unnecessary  to 
elaborate,  and  the  judgment  of  the  district  court  is  Affinticd} 


LEWIS  v.  WHITTEN  ET  AL. 

Supreme  Court  op  Missouri,  November  28,  1S92. 

[112  Mo.  318.] 

The  facts  are  given  in  the  opinion. 

Neal  &  Duckworth  and  D.  H.  Mclntyre  for  plaintiffs  in  error. 

Joh7t  H.  Lucas  and  Calvird  &  Lewis  for  defendant  in  error.^ 

Brace,  J. — This  is  an  action  brought  in  the  Circuit  Court  of  St. 
Clair  county  by  Robert  E.  Lewis,  plaintiff,  against  Stokle}-  D.  Whitten 
and  James  Elliott,  defendants,  to  set  aside  a  deed  executed  bj-  Whit- 
ten and  wife,  bearing  date  June  14,  iSSi,  conveying  a  tract  of  land  in 
said  county  to  Elliott  for  the  expressed  consideration  of  $3,600,  on  the 

1  See  the  remark  of  Dixon,  C.  J.,  in  Robhiiis  v.  Deverill  (1S65),  20  Wis.  142,  149,  given  in 
the  text,  ante  .     Compare  McHcnry  v.  Painter  (1SS2),  5S  Iowa  365,  36S  — Ed. 

'The  arguments  are  omitted. 


586  IN  WHOSE  NAME  THE  ACTION  SHOULD    BE  BROUGHT. 

ground  that  this  deed  was  made  without  consideration,  and  with  the 
intent  upon  the  part  of  Whitten  to  hinder,  delay,  and  defraud  his 
creditors,  in  which  fraudulent  intent  Elliott  participated. 

The  trial  court  so  found,  and  set  aside  and  annulled  the  deed;  the 
case  is  brought  here  by  the  defendants  on  writ  of  error. 

It  appears  from  the  evidence  that,  prior  to  the  April  Term,  iSSi,  of 
the  Circuit  Court  of  Henry  count\-,  a  son  of  Whitten  had  been  ar- 
rested for  grand  larceu}'  in  said  count}-,  which  adjoins  St.  Clair  on  the 
north;  that  Whitten  had  entered  into  a  recognizance  to  the  State  of 
Missouri  in  the  sum  of  ^i,ooo  for  the  appearance  of  his  son  at  the 
April  Term  aforesaid  of  the  Henry  County  Circuit  Court,  to  answer 
such  charge ;  that  at  the  said  term  the  son  was  indicted  for  grand  lar- 
ceny, but  failing  to  appear  the  recognizance  was  forfeited  ;  and  that  on 
June  14th  following  the  deed  in  question  was  executed.  The  tract 
conve3'ed  contains  about  315  acres  of  land,  worth  at  that  time  between 
$4,000  and  $5,000. 

On  January  28,  1885,  an  alias  execution  on  the  judgment  in  favor 
of  the  state  against  Whitten  on  the  forfeited  recognizance  was  issued 
to  the  sheriff  of  St.  Clair  count}-  from  the  office  of  the  Clerk  of  the 
Circuit  Court  of  Henry  county,  and,  on  March  3,  1885,  the  land  was 
sold  by  virtue  of  this  execution  by  said  sheriff. 

At  that  time  the  plaintiff,  Robert  E.  Lewis,  was  the  prosecuting  at- 
torney of  Henry  county.  At  the  sheriff's  sale  he  became  the  pur- 
chaser thereof,  being  the  highest  bidder  at  the  price  of  $434  ;  and  on 
the  same  day  the  said  Sheriff  duly  executed  and  acknowledged  his 
deed  convej'ing  said  land  to  the  plaintiff,  in  consideration  of  said  pur- 
chavse  price,  the  receipt  of  which  he  therein  acknowledged ;  and  on 
March  14,  1885,  this  suit  was  commenced.     .     .     . 

The  defendant  Whitten  in  his  answer  alleged  that  the  plaintiff  was 
the  attorney  for  the  state  of  Missouri,  paid  nothing  for  his  purchase, 
and  is  holding  the  same  as  trustee  for  the  state.  And  on  the  trial 
Whitten  offered  to  prove  that  the  "  plaintiff  was  the  prosecuting  attor- 
ney of  Henry  count}',  ]Mis.souri,  from  the  first  of  Januarj-,  1S83,  to  the 
first  of  Jantiar}-,  1887  ;  that  while  acting  as  such  prosecuting  attorne}- 
he  came  to  the  city  of  Osceola,  attended  the  sale  of  the  land  in  con- 
troversy under  forfeiture  of  the  bond,  and  bid  in  the  land ;  that  the 
plaintiff  did  not  pay  and  never  has  paid  the  amount  of  his  bid  into 
the  school  fund  of  Henry  county ;  that  plaintiff  did  not  execute  and 
never  has  executed  to  Henry  county  any  bond  or  agreement  to  the 
school  fund  of  said  county,  making  good  his  bid ;  that  the  plaintiff 
was  not  a  purchaser  of  the  land  in  controversy  for  a  good  and  valu- 
able consideration ;  that  he  never  paid  anything  on  said  bid,  nor  se- 
cured the  same  by  bond  or  otherwise ;  that  he  was  not  the  authorized 
agent  of  Henry  county  for  the  purpose  of  bidding  said  land  in  ;  that 
he  had  no  appointment  or  authorit}-  in  writing;  that  the  plaintiff  bid 
said  land  off  and  took  the  deed  in  his  own  name." 


HANLON  V.  TIllC  MKTKOI'OIJTAN  LIFU  INSURAXCli  COMl'ANV.     587 

So  far  as  this  evidence  tended  to  contradict  the  sheriff's  return,  it 
was  inadmissible.  The  object  of  the  offer,  however,  seems  to  have 
been  to  show  (and  it  is  so  argued  here)  that  the  plaintiff  is  not  the 
real  party  in  interest,  and,  therefore,  can  not  maintain  this  action. 

This  point  is  not  well  taken.  The  whole  object  of  this  suit  is  to  set 
aside  an  alleged  fraudulent  deed  to  land,  the  legal  title  of  which  is 
vested  in  the  plaintiff,  if  the  allegation  of  fraud  is  shown  to  be  true. 
It  does  not  follow  because  the  plaintiff,  owing  to  the  official  relation 
he  sustained  to  the  state,  to  the  countj^  of  Henry,  and  its  school  fund, 
at  the  time  of  the  purchase,  after  being  reimbursed  for  the  amount  he 
expended  in  securing  the  title  and  compensation  for  his  services  as 
such  official,  will  hold  the  title  to  the  land  in  trust  for  the  benefit  of 
the  school  fund  of  Henry  County,  that  he  is  not  the  proper  party  to 
sue.  The  purchase  was  made  for  his  own  benefit  to  the  extent  of 
such  reimbursement  and  compensation,  and  for  the  benefit  of  the 
school  fund  to  the  extent  of  the  remainder.  This  purchase  was  a 
contract  made  by  the  plaintiff,  in  his  own  name  for  the  benefit  of 
himself  and  the  school  fund,  and  he  is  the  proper  party  to  sue  in  this 
action,  not  only  for  the  protection  of  liis  own  individual  interest,  but 
also  that,  as  trustee  of  an  express  trust  within  the  definition  of  the 
statute,  in  a  contract  made  in  his  own  name  for  the  benefit  of  another, 
he  may  be  enabled  to  discharge  his  obligation  to  the  cestui  que  tvjist 
for  whose  benefit  the  purchase  was  also  made. 

TJic  Judgment  is  ajfirvu'd. 
All  concur. 1 


HANLON  V.  THE   METROPOLITAN   LIFE   INSURANCE    COM- 
PANY. 

New  York  Common  Pleas,  General  Term,  June,  1S94. 

[9  Misc.  70.] 

Appeal  from  a  judgment  of  the  District  Court  in  the  Q.\\.y  of  New 
York,  rendered,  without  a  jar}-,  in  favor  of  the  plaintiff 

Thomas  Gillerau,  for  respondent. 

C.  N.  Bovee,  Jr.,  and  /.  McG.  Goodale,  for  appellant. 

BiscHOFP,  J. — The  plaintiff  sued  upon  a  policy  of  insurance  upon 
the  life  of  her  brother,  and  in  which  she  was  designated  as  the  bene- 
ficiary. As  a  counterclaim  defendant  interposed  a  judgment  obtained 
against  the  plaintiff  and  assigned  to  the  former. 

B}'  stipulation  of  the  parties,  made  upon  the  trial  and  appearing  in 
the  return,  it  was  admitted  that  the  plaintiff  was  entitled  to  recover 
the  amount  of  the  policy  in  suit,  there  being  no  defences  thereto; 

•  Part  of  the  opinion,  on  other  points,  is  omitted. 


588  IN  WHOSE  XAME  THE  ACTION  SHOULD  BE  BROUGHT. 

and,  upon  the  other  hand,  the  plaintiff  conceded  that  the  judgment 
upon  which  claim  was  made  by  the  defendant  had  been  duly  assigned 
for  sufficient  consideration,  and  that  the  plaintiff  was  the  person 
against  whom  such  judgment  had  been  obtained.  Upon  the  trial  it 
was  conceded  furthermore,  on  the  part  of  the  plaintiff,  that,  were  she 
suing  for  her  individual  benefit,  the  amount  of  the  counterclaim,  in 
excess  of  the  sum  due  upon  the  policy,  should  properly  be  allowed  in 
judgment  for  the  defendant.^ 

Such  being  the  attitude  of  the  parties,  evidence  was  given  on  be- 
half of  the  plaintiff,  under  objection,  showing  an  oral  agreement  be- 
tween the  plaintiff  and  the  insured  which  was  to  the  effect  that,  in 
consideration  of  the  policy  and  the  payment  of  the  premiums  as  they 
accrued  from  time  to  time,  and  the  receipt  of  the  proceeds  of  the 
policy  upon  the  death  of  the  insured,  the  plaintiff  would  defray  the 
funeral  expenses  of  the  insured.  It  was  also  a  part  of  such  oral 
agreement  that  one  Finan,  an  undertaker,  should  be  employed  on  the 
occasion  of  the  insured's  burial.  The  justice  below  rendered  judg- 
ment in  favor  of  the  plaintiff  for  the  amount  claimed,  disregarding 
the  counterclaim  interposed  by  the  defendant,  the  judgment  resting 
apparently  upon  the  provisions  of  section  502,  subdivision  3,  of  the 
Code  of  Civil  Procedure,  which  are  as  follows:  "If  the  plaintiff  is  a 
trustee  for  another,  or  if  the  action  is  in  the  name  of  a  plaintiff  who 
has  no  actual  interest  in  the  contract  upon  which  it  is  founded,  a 
demand  against  the  plaintiff  shall  not  be  allowed  as  a  counterclaim, 
but  so  much  of  a  demand  existing  against  the  person  whom  he  rep- 
resents, or  for  whose  benefit  the  action  is  brought,  as  will  satisfy  the 
plaintiff's  demand,  must  be  allowed  as  a  counterclaim,  if  it  might 
have  been  so  allowed  in  an  action  brought  by  the  person  beneficially 
interested."     .      .      .  - 

That,  in  consideration  of  the  policy  and  the  payment  of  the  premi- 
ums by  the  insured,  the  plaintiff  may  have  rendered  herself  liable  to 
the  personal  representatives  of  the  insured,  or  to  the  undertaker, 
upon  her  promise  to  pay  the  funeral  expenses  of  the  insured,  does  not 
render  either  the  representatives  or  the  undertaker  beneficiallj'  inter- 
ested in  the  policj'  issued  by  the  defendant.  If  that  were  otherwise, 
this  action  would  not  be  maintainable,  since,  bj'-  express  provision  of 
law  (Code  Civ.  Proc,  §  449),  the  action  must  be  brought  in  the  name 
of  the  real  party  in  interest.  The  institution  and  prosecution 
of  the  action  by  the  plaintiff  as  the  beneficiary  named  in  the 
policy  is,  therefore,  in  and  of  itself  a  refutation  that  another  is 
the  real  partj^  in  interest.  To  hold  that  the  counterclaim  is  not 
available  to  the  defendant  because  another  than  the  plaintiff  is  the 

>  Citing;  Wells  v.  Henshaw,  3  Bosw.  625;  Clark  v.  Story,  29  Barb.  295;  Code  Civ.  Proc, 
§  1909. 

=  Part  of  the  opinion,  touching  on  the  application  of  this  section  to  an  action  lirouijht  in 
the  District  Court,  is  omitted. 


HANLON  v.  THK  METROPOLITAN  LIFE  INSURANCE  COMPANY.      589 

real  part}'  in  interest  respecting  the  demand  sought  to  be  enforced,  is 
to  say  that  the  plaintiff  is  not  entitled  to  a  recovery.  The  plaintiff's 
contentions  respecting  her  claim  and  the  defendant's  counterclaim 
are.  therefore,  plainly  inconsi.stent.  vShe  is  either  the  party  in  interest, 
and  then  the  counterclaim  is  available,  or  she  is  not  the  party  in 
interest,  and  then  she  can  not  maintain  the  action.  By  bringing  and 
prosecuting  the  action,  and  asserting  her  right  to  recover,  she  insists 
that  she  is  the  party  in  interest  respecting  the  demand  in  suit,  and  so, 
by  her  own  admission,  the  defendant's  counterclaim  is  available 
against  her.     A  judgment  in  her  favor  determines  that  it  was. 

It  is  apparent  that  subdivision  3  of  section  502  of  the  Code  of  Civil 
Procedure  must  be  read  with  the  provision  of  section  449,  and  that 
the  persons  against  vrhom  a  personal  indebtedness  shall  not  be 
available  to  the  defendant  as  a  counterclaim  are  such  as  may  be  prop- 
erly classed  as  "trustees  of  express  trusts."^  No  express  trust  in 
favor  of  the  legal  representatives  of  the  insured,  or  the  undertaker, 
was  created  by  the  plaintiff's  oral  agreement  to  pay  the  funeral  ex- 
penses.2 

As  between  the  parties  to  the  insurance  contract,  the  promise  of  the 
defendant  to  pay  the  amount  named  in  the  policy  does  not  appear  to 
have  been  made  for  the  benefit  of  any  person  other  than  the  plaintiff, 
the  beneficiary  designated  in  the  policy.  Defendant  was  no  party  to 
plaintiff's  alleged  oral  agreement.  Hence  it  can  not  be  successfully 
urged  that  the  contract  which  the  plaintiff  sought  to  enforce  with  this 
action  was  made  with  her,  or  in  her  name,  or  with  the  insured,  or  in 
the  name  of  the  insured,  for  the  benefit  of  either  the  personal  repre- 
sentatives of  the  insured  or  the  undertaker.  Plainly,  then,  the  case  is 
not  one  within  the  operation  of  the  provision  of  section  449  of  the 
Code  of  Civil  Procedure,  that  "  a  person  with  whom  or  in  whose  name 
a  contract  is  made  for  the  benefit  of  another,"  shall  be  deemed  to  be 
the  trustee  of  an  express  trust. 

The  foregoing  considerations  lead  to  the  conclusion  that  the  justice 
erred  in  disallowing  defendant's  counterclaim,  and  that  the  mdgment 
should  be  reversed. 

Judgment  reversed  and  new  trial  gi'atited,  ivith  costs  to  the  appellant 
to  abide  the  event. 

BOOKSTAVER,  J.,  coucurs. 

»  Citing,  Hood  v.  Hay  ward,  124  N.Y.  1,24;  Sperb  v.  McGoun,  no  id.  605,610;  Wetmore 
V.  Porter,  92  id.  76,  83;  L^nited  States  Trust  Co.  v.  Stanton,  139  id.  531,  534;  Duncan  v.  China 
Mut.  Ins.  Co.,  129  id.  237,  246. 

»  Citing,  Pomerov,  Rem.  &  Rem.  Rights,  %  171-1S2;  Considerant  z'.  Brisbane,  22  N.  Y. 
3S9- 


590  IN  WHOSE  XAMK  THE  ACTION  SHOULD  BE  BROUCHT. 

HENXIXG  :■.  RAYMOND. 

Supreme  Court  of  Minnesota,  June  25,  1886. 
[35  ^"^tinn.  303.] 

The  plaintiff,  as  receiver  of  the  assets  of  a  partnership,  brought 
this  action  in  the  district  court  for  Winona  county,  to  recover  for 
goods  sold  and  delivered  b}-  the  partnership.  The  action  was  tried 
without  a  jury,  before  vStart,  J.,  who  ordered  judgment  for  the  plain- 
tiff, from  which  the  defendant  appeals. 

Lloyd  Barber,  for  appellant. 

Berry  &  Morey,  for  respondent. 

Mitchell,  J. — In  an  action  pending  in  the  circuit  court  of  Cook 
county,  Illinois,  to  dissolve  the  partnership  between  the  parties  to 
that  suit,  plaintiff  was,  by  order  of  the  court,  appointed  receiver  of 
all  and  singular  the  business  and  property  of  the  partnership,  with 
power  and  authority  "  to  take  possession  of  all  the  accounts,  stock  in 
trade,  money,  effects,  and  property,  of  every  kind  and  nature,  wher- 
ever situated,  and  to  collect  all  outstanding  debts  due  to  said  partner- 
ship'" Plaintiff  brings  this  action  to  collect  a  debt  due  the  copartner- 
ship. It  does  not  appear  what  powers  or  rights  over  the  property  are 
given  to  such  receivers  b}-  the  statute  of  Illinois.  There  is  no  statute 
in  this  state  expresslj-  giving  a  receiver  authority  to  maintain  such  an 
action.  We  must  assume  that  the  plaintiff  is  what  is  called  a  "com- 
mon-law receiver,"  with  just  such  powers  as  are  given  him  by  the 
order  of  the  court. 

No  question  is  made  as  to  the  power  of  the  court  to  authorize  this 
receiver  to  bring  action  to  collect  debts  due  the  copartnership. 
Neither  is  it  claimed,  as  we  understand  appellant,  that  the  authority 
here  given  to  collect  does  not  include  authority  to  bring  suit  when 
necessarj'.  The  only  point  raised  is  that  plaintiff  can  not  maintain 
such  an  action  in  his  own  name,  but  should  have  brought  it  in  the 
name  of  the  partnership  to  whom  the  debt  was  due. 

The  rule  generally  laid  down  in  the  books  is  that,  where  a  receiver 
is  appointed  under  the  equity  powers  of  the  court,  he  can  not  sue  in 
his  own  name,  but  the  action  must  be  brought  in  the  name  of  the 
legal  owner  of  the  property-,  who  will  be  compelled  to  allow  the 
use  of  his  name  for  that  purpose.  This  rule  seems  to  be  pred- 
icated upon  the  idea  that  a  common-law  receiver  is  the  mere  cus- 
todian of  the  property,  and  can  not  be  considered  as  an  assignee 
of  it,  and  does  not  become  the  owner.  Such,  at  least,  seems  to  have 
been  the  doctrine  of  the  common-law  courts;  and  courts  of  chan- 
cery, when  called  upon  to  authorize  their  receivers  to  proceed  in  an 
action  at  law,  were  necessarily  compelled  to  conform  to  the  rules  of 
the  common-law  courts. 


]Ii:.\NING   :•.  RAYMOXD.  591 

It  is  true  that  a  ccjinniou-law  receiver,  such  as  the  plaintiff,  is  not 
the  assignee  or  owner,  beneficially  at  least,  of  the  property  intrusted 
to  him;  but  it  is  an  incomplete  and  inaccurate  statement  of  his  rela- 
tions to  the  property  to  say  that  he  is  merely  its  custodian.  When  a 
court  has  taken  property  into  its  own  charge  and  custody  for  the 
purpose  of  administration  and  disposition,  in  accordance  with  the 
rights  of  the  parties  to  the  litigation,  it  is  in  custodia  Icgis.  The  title 
of  the  property  for  the  time  being,  and  for  the  purposes  of  such  ad- 
ministration, may,  in  a  sense,  be  said  to  be  in  the  court.  The  pro- 
ceeding by  receivership  is  quasi  in  rem,  so  far  as  it  involves  a  seques- 
tration of  assets. 

The  receiver  is  appointed  for  the  benefit  of  all  concerned.  He  is 
the  representative  of  the  court,  and  of  all  parties  interested  in  the 
litigation  wherein  he  is  appointed.  He  is  the  right  arm  of  the  court 
in  exercising  the  jurisdiction  invoked  in  such  cases  of  administering 
the  propert}-.  The  court  can  only  administer  and  dispose  of  it 
through  a  receiver.  For  this  reason,  all  suits  to  collect  or  obtain  pos- 
session of  the  propert}^  must  be  prosecuted  by  the  receiver,  and  the 
proceeds  received  and  controlled  by  him  alone.  If  the  suit  be  nomi- 
nally prosecuted  in  the  name  of  the  original  owners  of  the  propertj-. 
it  is  an  inconvenient,  as  well  as  useless,  form;  they  have  no  discre- 
tion as  to  instituting  the  suit,  and  no  control  over  its  management, 
aud  no  right  to  the  possession  of  the  proceeds.  The  receiver,  as  an 
officer  of  the  court  which  has  taken  control  of  the  propert3%  is,  for  the 
time  being,  and  for  the  purpose  of  the  administration  of  the  as.sets, 
the  real  partj'  in  interest  in  the  litigation.  There  is  no  reason,  there- 
fore, why  the  suit  should  not  be  instituted  in  his  own  name.  Hence, 
in  many  states,  it  is  so  provided  by  statute.  But  in  man}-  jurisdic- 
tions, in  the  absence  of  an}-  such  statute,  it  has  been  held  that  the 
courts  ma}-,  by  virtue  of  their  inherent  equity  powers,  authorize  their 
receivers  to  institute  suits  in  their  own  names. i 

Whatever  technical  reasons  may  have  existed  for  refusing  to  permit 
common-law  receivers  to  sue  in  their  own  names,  they  exist  no  longer, 
under  our  Code.  As  an  officer  of  the  Court,  intrusted  with  the  ad- 
ministration of  the  partnership  assets,  we  do  not  see  why  plaintiff  has 
not  such  a  special  property  in  them,  as  to  constitute  him  "the  real 
party  in  interest,"  within  the  meaning  of  the  statute.  But  inasmuch 
as,  in  his  official  capacity,  he  acts  as  "  the  trustee  of  an  express  trust," 
he  has,  in  any  event,  a  right  to  maintain  this  action  on  that  ground. 
See  Person  v.  Warren,  i\  Barb.  488;   Thomas  v.  Benjiett,  56  Barb.  197.- 

Jndgmeni  affirmed. 

'  Citing,  Davis  v.  Gray,  i6  Wall.  203;  Ilardwick  v.  Hook,  S  Ga.  354;  Leonard  v.  Storrs, 
31  Ala.  4SS;  Wray  v.  Jamison,  10  Humph.  1S5;  Tillinghast  t.  Chaplin,  4  R.  I.  173  (67  Am. 
Dec.  510.) 

-  And  see  Wcland  v.  Haugan  (1S97),  70  Minn.  349,  355:  ''A  receiver  or  assignee  for  the 
benefit  of  creditors  is  a  trustee  of  an  express  trust,  and  as  such  is  empowered  to  bring- 
actions  in   his  own   name,  under  G.  S.  :$g4,  1S315S.  ■' — Per  Collins,  J.     See  also  £vans  v 


592  IX  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROT'GHT. 


STARKER  &  REMEY,  TRUSTEES,  v.  THE  McCOSH  IRON  & 
STEEL  CO.  ET  AL. 

Supreme  Court  of  Iowa,  April  6,  1895. 

[94  /owa  330.] 

The  defendants,  other  than  the  McCosh  Iron  &  Steel  Compan}-,  are 
the  Burlington,  Cedar  Rapids  &  Northern  Railroad  Compan}-,  Adam 
Moehn,  and  C.  \V.  Rand,  Receiver.  The  plaintiff  trustees  are  the 
holders  of  certain  bonds  issued  by  the  McCosh  Iron  &  Steel  Companj- 
for  $225,000,  which  bonds  the  Company  had  secured  by  a  mortgage  oh 
its  plant,  including  certain  personal  property.     .     .     . 

Because  of  a  failure  to  pay  the  interest  on  the  bonds  as  it  became 
due,  under  a  provision  of  the  mortgage,  the  entire  mortgage  debt  be- 
came due,  and  this  action  is  to  foreclose  the  mortgage  therefor.  On 
the  day  of  the  filing  of  the  original  petition,  was  also  filed  an  appli- 
cation for  the  appointment  of  a  receiver,  pending  which  application  a 
supplemental  petition  was  filed,  making  Adam  Moehn  and  the  de- 
fendant railroad  company  parties  defendant.  As  to  the  railroad  com- 
pany, it  is  alleged  that  it  has  removed,  or  is  about  to  remove,  from  the 
plant  a  large  quantity-  of  iron  rods  which  are  included  in  the  plain- 
tiff"'s  mortgage,  and  an  injunction  was  asked  and  obtained  to  prevent 
such  removal.     .     .     . 

The  prayer  of  the  petition  is  that  all  the  property  be  preser^-ed  to 
the  plaintiffs,  and  applied  to  the  discharge  of  their  claim  under  the 
mortgage.  The  defendants  Moehn  and  the  railroad  company  each  an- 
swered. The  McCosh  Iron  &  Steel  Company  made  no  defence,  and, 
as  to  it,  the  district  court  gave  judgment  for  plaintiff,  and  for  defend- 
ants Moehn  and  the  railroad  company;  as  to  them,  the  plaintiff  ap- 
peals.    .     .     . 

P.  Henry  Smith  and  Powers  &  Husi07i,  for  appellants. 

6".  K.  Tracy,  Kelly  &  Cooper,  J.  T.  Illick,  and  C.  L.  Poor,  for  ap- 
pellees. 

Granger,  J. — I.  The  facts  as  to  the  defendant  railroad  company 
are,  in  substance,  that  it  received  several  carloads  of  iron  rods  con- 
signed by  Naylor  &  Co.  to  itself  at  Burlington,  Iowa,  where  was  lo- 
cated the  plant  of  the  ISIcCosh  Iron  &  Steel  Company,  to  be  delivered 
to  such  company  on  payment  of  drafts  therefor  drawn  by  Naylor  & 
Co.  to  its  own  order,  which  drafts  were  attached  to  the  bills  of  lading, 

Pease  (1S99),  .   .   .   .  R.  I ,42AtLso6:    "The  theory  that  the   receiver  does  not 

become  invested  with  the  legal  title  to  choses  in  action  is  losing  ground,  as  being  unsatis- 
factory and  unnecessarily  technical." — Per  Stiness,  J.,  referring  to  Beach  on  Receivers 
(Aid.  ed.),  $$  692,  693.  Compare  High  on  Receivers,  %  209  et  seq.;  Runk  v.  St.  John  (1859), 
39  Barb.  585;  Home  Mutual  Life  Ins.  Co.  -v.  Taylor  (1864),  2  Robt.  27S;  Lathrop  v.  Knapp 
(1S95),  37  Wis.  307;    Garver  v.  Kent  (18S0),  70  Ind,  428.  — Ed. 


STARKKR  .V   RlvMIvV  V.  THlv  m'cOSH  IRON  COMPANY.  5'.»;; 

and  sent  to  the  National  State  Bank  at  Burlington,  of  which  bank  the 
plaintiff  Remey  is  the  president.  One  Kendall  is  the  general  agent 
for  the  railway'  company,  and  upon  the  representation  of  McCosh,  who 
was  an  agent  of  the  iron  and  steel  compan}-,  that  the  company  was  in 
need  of  the  iron,  and  that  he  would  furnish  the  necessary'  papers,  he 
(Kendall)  delivered  the  rods  to  the  company.  The  rods  had  not  been 
paid  for,  and  the  deliver}-  was  without  authorit}'.  It  was  after  this  de- 
liver}' that  the  railway  company  attempted  to  take  possession  of  the 
rods,  and  were  stopped  by  the  injunction.  The  rods  were  then  sold, 
with  other  iron,  b}-  the  trustees,  and  the  amount  realized  was  ^1,986.- 
93,  of  which  amount  $1,893.93  w^as  for  the  rods  in  question;  and  the 
district  court,  finding  the  issues  with  the  railroad  company,  entered 
judgment  for  it  for  that  amount,  and  ordered  the  receiver  to  pa}-  it. 

It  is  said  by  appellants  that  the  railroad  company  can  not  recover 
because  not  the  real  party  in  interest.  The  answer  recited  the  facts, 
and  an  amendment  to  it  presents  a  prayer  for  "judgment  for  the  re- 
turn of  the  property,  or  that  it  have  judgment  for  its  value,"  etc. 
That  the  answer  sought  such  relief  as  was  granted  is  clearly  manifest 
on  the  face  of  it.  The  parties  proceeded  to  a  trial  of  the  issues,  and 
testimony  was  elicited  with  a  view  to  such  a  judgment,  if  the  facts 
were  established.  The  plaintiffs  had,  after  the  issuance  of  the  injunc- 
tion, sold  the  goods,  and  only  the  money  w-as  in  their  hands  as  the 
subject  of  contention.  As  between  the  railroad  company  and  the  con- 
signor, the  company  had  wrongfully  disposed  of  property  intrusted  to 
it  for  specified  purposes;  that  is,  for  transportation  and  delivery  under 
specified  conditions.  The  property,  persons,  and  purposes  of  the 
trust  were  expressly  pointed  out  and  understood.  Such  conditions 
make  an  express  trust.  Terr}-,  Tr7isis,  section  24.  The  railroad  com- 
pany, as  a  trustee  of  an  express  trust,  could  bring  the  action  in  its 
own  name.  Code,  section  2544.  As  such  a  trustee,  it  had  the  right 
to  protect  itself  and  the  rights  of  the  company  for  whom  the  trust 
was  exercised.' 

It  seems  to  us  that  the  judgment  of  the  District  Court  is  legal  and 
equitable,  and  it  is  Affirjned. 

>  Part  of  statement  of  facts  and  of  the  opinion,  relatjn<^  to  other  questions,  is  omitted. 


594  IN  WHOSEJ  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


KINGSLAND  &  DOUGLAS    MANUFACTURING   COMPANY 
:'.  BOARD    BROTHERS. 

Kansas  City  Court  of  Appeals,  January  28,  1895. 

[60  Mo.  App.  662.] 

The  facts  appear  in  the  opinion  of  the  Court. 

Thos.  J.  Smith,  for  plaintiff  in  error. 

Graves  &  Clark,  for  defendant  in  error. 1 

Gill,  J, — This  is  an  action  in  replevin  brought  to  recover  the 
possession  of  a  steam  thresher,  separator,  etc.,  which  plaintiff  had 
sold  to  the  defendants,  and  on  which  defendants  had  executed  a  chat- 
tel mortgage,  or  deed  of  trust,  to  secure  certain  notes  given  for  the 
purchase  price. 

Before  this  suit  was  commenced,  plaintiff  had  sold  and  assigned 
one  of  the  notes  to  the  Watertown  Steam  Engine  Compan}-,  but  vStill 
held  the  other,  and  both  said  notes  were  then  past  due.  The  petition 
was  in  the  usual  form,  and  the  answer  a  general  denial.  At  the  close 
of  the  evidence  the  court  peremptorily  instructed  the  jur}-  to  find  for 
the  plaintiff,  and,  from  a  verdict  and  judgment  accordingly,  the 
defendants  have  brought  the  case  here  by  writ  of  error. 

I.  The  first  contention  is  that  plaintiff  can  not  maintain  this 
action  for  the  possession  of  the  mortgaged  propert}-,  because  one  of 
the  notes  secured  had  been  transferred  to  the  Watertown  Company; 
that  such  partial  assignment  of  the  debt  had  the  effect  to  transfer  an 
interest,  pro  tanto,  in  the  mortgage,  and  that  the  plaintiff  was  not, 
therefore,  entitled  to  the  exclusive  possession  of  the  property  sued 
for. 

We  do  not  think  this  objection  well  taken.  It,  of  course,  must  be 
conceded  that  an  assignment  of  the  debt  carries  the  mortgage  security 
along  with  it;  and  that  a  sale  and  transfer  of  a  portion  of  such  debt 
(as,  for  example,  the  sale  and  assignment  of  one  of  a  number  of  notes 
vSecured)  will  take  along  with  it  a  pro  tanto  interest  in  the  mortgage 
security.  But,  strictly  speaking,  this  interest  in  the  mortgage  so 
taken  by  the  assignee  of  the  entire  debt,  or  portion  thereof,  is  merely 
equitable  in  its  nature — the  legal  title  remains  in  the  mortgagee. 
Jones  on  Chattel  Mortgages  (2  Ed.),  sees.  503,  504. 

The  instrument  we  have  here  is  not  in  the  usual  form  of  a  chattel 
mortgage.  And  it  can  hardly  be  denominated  a  deed  of  tnist,  though 
it  purports  to  convey  the  propert}'  to  the  Kingsland  &  Douglas  Manu- 
facturing Company  "/;^  trtisl  to  secure  to  said  Kingsland  &  Douglas 
Manufacturing  Company,  or  the  holders  thereof,  the  payment  of  the 
following  promissory  notes,"  etc.,  and  authorizes  said  trustee  (the 
Kingsland  &  Douglas  Manufacturing  Company),  in  case  of  a  default 

'  The  arguments  are  oin'.ftecl. 


KIXOSLAXn  cS:  DOUGLAS  MFC.  CO.  :'.  KO.VKD  UROS.  595 

in  paj-ment  of  tlic  notes,  to  take  po.ssession  of  the  property,  sell  the 
same,  and  pay  the  debt. 

But,  whether  we  call  it  a  chattel  mortgage  with  power  of  sale,  or  a 
deed  of  trust,  the  legal  effect  is  the  same.  Bartlctl  v.  Teak,  i  Fed. 
Rep.  770.  By  the  instrument  the  plaintiff  here  was  invested  with 
the  legal  title  of  the  property,  to  be  held  and  used  for  the  securit}'  of 
the  notes,  whether  owned  by  the  said  mortgagee  or  trustee,  or  other 
persons.  When  the  Kingsland  Company  transferred  one  of  the  notes  " 
to  the  Watertown  Steam  Engine  Company,  a  beneficial  or  equitable 
interest  to  that  extent  was  thereby  assigned  to  said  Engine  Company, 
but  yet  the  legal  title  to  the  whole  and  the  beneficial  interest  to  the 
extent  of  the  note  retained,  remained  with  the  plaintiff.  It  was  all 
the  time  the  trustee  of  an  express  trust. 

It  was  formerly  the  rule  that  the  assignee  of  the  mortgage  debt 
could  not  maintain  replevin  for  the  mortgaged  property — that  such 
£Ction  could  only  be  maintained  by  the  mortgagee,  or  by  the  assignee 
in  the  name  of  the  mortgagee.  Jones  on  Chattel  ^Mortgages,  sec.  503. 
Under  our  practice  act,  however,  this  rule  has  been  broadened.  It  is 
first  provided  that  every  action  shall  be  prosecuted  in  the  name  of 
the  real  part}'  in  interest  (Revised  Statutes,  1S89,  section  1990),  except, 
however,  the  trustee  of  an  express  trust  "  may  sue  in  his  own  name, 
without  joining  with  him  the  person  for  whose  benefit  the  suit  is 
prosecuted.  A  trustee  of  an  express  trust  within  the  meaning  of  this 
section  shall  be  construed  to  include  a  person  with  whom,  or  in  whose 
name,  a  contract  is  made  for  the  benefit  of  another."     R.  S.,  sec.  1991. 

Apph-ing  this  statute  to  the  case  in  hand,  the  holder  of  the  notes 
secured  by  the  mortgage  might  sue,  as  being  the  real  party  in  interest 
(^Kingslajid  v.  Chrisman^  28  ]\lo.  App.  308)  or  the  plaintiff,  as 
mortgagee,  or  trustee  of  an  express  trust,  might  maintain  the  action. 
And,  in  such  case,  a  judgment  in  either  case  would  bar  the  other. 
See  Barton  v.  Martin,  and  authorities  cited  ante.^ 

\Ve  have  no  concern  here  as  to  the  relative  rights  between  the 
Kingsland  and  Watertown  Companies  in  the  mortgaged  propert}-.  If 
the}'  fail  to  agree  as  to  the  proper  disposition  of  the  funds  that  ma}- 
arise  from  a  sale  of  the  property,  that  contest  must  be  settled  in  an 
action  wherein  the  Watertown  Company  may  be  a  party.  This  is  a 
matter  that  does  not  concern  these  defendants.  The  point  now  de- 
cided is,  that  the  plaintiff,  as  trustee  of  an  express  trust,  is  authorized, 
under  the  terms  of  the  mortgage,  or  deed  of  trust,  to  sue  for  and 
recover  possession  of  the  mortgaged  property .-' 

We  discover  no  error  in  the  action  of  the  circuit  court,  and  its 
judgment  will  be  afiirmed. 

All  concur. 

'60  Mo.  App.  351,  357,  where  the  following  authorities  are  cited:  Anthony  v.  Cermau 
American  Ins.  Co.,  48  Mo.  App.  65;  Rogers  -v.  Gosnell,  51  Mo.  466;  McComas  v.  Ins.  Co., 
56  Mo.  573-575;   Chouteau  v.  Boughton,  100  Mo.  406.  — E<i- 

'  Part  of  the  opinion,  on  other  points,  is  omittcJ. 


596  IN  WHOSE  NAME  THE  ACTIOX  SHOULD  BE  BKOUGHT. 

ETTLINGER,  RESPONDENT,  z'.  THE  PERSIAN  RUG  cSc  CAR- 
PET COMPANY  ETAL.,  RESPONDENTS;  SCHUMACHER, 
APPELLANT. 

Court  of  Appeals  of  New  York,  April  io,  1S94. 

[142  iV.  Y.  189.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court 
which  reversed  a  judgment  in  favor  of  the  defendant  Schumacher,  en- 
tered upon  an  order  dismissing  the  complaint  on  trial  at  Special  Term 
and  ordered  a  new  trial. 

This  action  was  brought  by  the  plaintiff  as  holder  of  a  bond  of  the 
defendant  the  Persian  Rug  and  Carpet  Company,  secured  by  a  mort- 
gage executed  by  the  companj-  to  the  defendant  Krause,  as  trustee,  to 
foreclose  said  mortgage. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Francis  B.  Chedsey,  for  appellant. 

Thomas  P.  Wicks,  for  respondent. 

Finch,  J. — The  determination  of  a  single  question,  discussed  on  the 
argument,  will  dispose  of  this  appeal. 

The  plaintiff  was  one  of  two  bondholders  protected  b}-  a  trust  mort- 
gage. His  complaint  showed  all  the  facts  necessary  to  a  judgment  of 
foreclosure  if  the  action  had  been  brought  b}'  the  trustee,  and  sought 
to  justify  his  intervention  as  bondholder  and  plaintiff  in  the  action 
upon  the  ground  that  the  trustee  had  left  this  countr}-,  and  was  some- 
where in  foreign  parts,  and  had  become  insane.  On  the  trial,  the  fact 
of  such  absence  was  shown ;  that  the  family  of  the  trustee  had  also 
departed  to  join  him  abroad;  and  that  inquiries  made  in  natural  and 
reasonable  directions  were  answered  by  the  statement  that  the  trustee 
had  become  insane. 

The  Special  Term  dismissed  the  complaint  upon  the  ground  that 
the  bondholder  could  not  sue  where  there  was  a  competent  trustee  un- 
less the  latter  refused  to  act ;  and  where  the  trustee  had  become  in- 
competent, it  was  necessary  first  to  procure  the  appointment  of  a  new 
trustee.  The  dismissal  of  the  complaint  did  not  go  upon  any  failure 
of  proof,  but  assuming  the  allegations  of  the  complaint  to  have  been 
established,  the  court  still  held  that  the  plaintiff  could  not  sue  for  a 
foreclosure.  An  appeal  was  taken  to  the  General  Term,  which  re- 
versed the  judgment  and  ordered  a  new  trial. 1 

1  At  this  point  the  court  remarked:  "  Instead  of  going  back  and  presenting  his  defence 
so  far  as  he  had  one,  the  defendant,  who  was  the  remaining  bondholder,  and  for  ^vhose  in- 
terest a  foreclosure  w^as  as  much  of  a  necessity  as  for  that  of  the  plaintiff,  adopted  the  per- 
ilous experiment  of  an  appeal  to  this  court,  with  the  required  stipulation  for  judgment  ab- 
solute. It  appeared  on  the  argument  that  the  defendant  was  injured  only  at  a  slight  point: 
not  by  the  foreclosure;  not  by  its  natural  and  proper  result;  not  even  by  the  appointment 
of  a  temporary  receiver;  but  by  a  sale  of  the  properly  claimed  to  have  been  collusive,  and 
which  vested  title  in  the  plaintiff  for  less  than  the  real  value.    All  that  could  have  been 


ETTMNC.ICK  :•.  TlIK  I'KKSIA.V  lUG  CU-MTANV.  597 

We  are  satisfied  that  the  plaintiff  had  the  right  to  maintain 
the  action,  and  that  fact  alone  justified  the  reversal  of  the  judg- 
ment by  the  General  Term.  It  is  conceded  that  the  beneficiary 
may  sue  where  the  trustee  refuses,  but  that  is  because  there  is  no 
other  remedy,  and  the  right  of  the  bondholder,  otherwise,  will  go 
unredressed.  The  doctrine  does  not  rest  rigidly  upon  a  technical 
ground,  but  upon  a  substantial  necessity.  In  the  case  of  a  corpora- 
tion a  stockholder  may  sue,  not  only  because  it  refuses,  but  because 
those  who  represent  it  are  the  very  parties  who  have  committed  the 
wrong.  Brinckerhqff  v.  Doshvick,  88  N.  Y.  52.  In  that  case  we  said 
that  a  demand  upon  the  corporation  to  sue  would  be  "  futile  "  and  so 
was  "  unnecessary,"  and  since  the  action  could  not  be  "  effectually 
prosecuted  in  that  form  "  the  shareholders  might  sue.  What  occurred 
in  the  present  case  was  tantamount  to  and  equivalent  of  a  refusal  by 
the  trustee.  He  had  gone  beyond  the  jurisdiction ;  the  whole  appre- 
hended mischief  would  be  consummated  before  he  could  be  reached; 
and  if  reached  there  was  sufiicient  reason  to  believe  that  he  was 
incompetent. 

But  the  Special  Term  say  that  in  such  event  a  new  trustee  should 
have  been  appointed.  That  simph-  reproduces  the  same  difficulty  in 
another  form,  for  a  court  would  hardh'  remove  a  trustee  without 
notice  to  him  and  giving  him  an  opportunity  to  be  heard.  And  why 
should  a  new  appointment  be  made  when  any  one  of  the  bond- 
holders can  equally  do  the  dutj'  of  pursuiug  the  foreclosure  ?  The 
court,  in  .such  an  action,  takes  hold  of  the  trust,  dictates  and  controls 
its  performance,  distributes  the  assets  as  it  deems  just,  and  it  is  not 
vitalW  important  which  of  the  two  possible  plaintiffs  sets  the  court  in 
motion.  The  bondholders  are  the  real  parties  in  interest;  it  is  their 
right  which  is  to  be  redressed,  and  their  loss  which  is  to  be  prevented ; 
and  any  emergencj'  which  makes  a  demand  upon  the  trustee  futile  or 
impossible,  and  leaves  the  right  of  the  bondholder  without  other 
reasonable  means  of  redress,  should  justif}-  his  appearance  as  plaintiff 
in  a  court  of  equity,  for  the  purpose  of  a  foreclosure. 

It  is  unnecessary  to  consider  or  discuss  other  questions,  which 
were  numerous.  What  we  have  said  requires  us  to  affirm  the  order 
of  the  General  Term,  and  award  judgment  absolute,  against  the  de- 
fendant upon  his  stipulation,  with  costs. 

All  concur. 

Ordered  accordingly. 

remedied  in  a  new  trial.  A  re-sale  could  have  been  ordered,  of  the  plaintiff  compelled  to 
account  for  the  property  at  its  just  and  fair  value,  which  would  have  given  to  the  defend- 
ant everything  to  which  he  was  entitled.  Seeing  the  situation  and  observing  the  defend- 
ant's danger,  we  suggested  to  his  counsel  on  the  argument  the  prudence  of  escaping  it  by 
a  withdrawal  of  his  appeal.  He  declined  the  suggestion,  and  if  any  hardship  results  it 
will  not  be  the  fault  of  the  court." 


598  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


NOTE.— RIGHT    OF    THE    BENEFICIARY    TO    SUE    INSTEAD    OF    THE    TRUSTEE. 

See  Shelby  County  -v.  Simmonds  (1871),  33  I°^va  34S,  347--  "  The  bond  in  this  case  was 
executed  to  the  State,  but  the  money  forfeited  thereon  is  to  be  paid  into  the  county  treas- 
ury, as  a  trust  fund,  for  the  benefit  of  the  schools  of  the  State.  It  clearly  appears,  from 
the  foregoing  considerations,  that  the  County  is  the  only  party  entitled  to  receive  the 
money.  There  exists  no  party,  for  whose  benefit  the  money  is  held  by  the  County,  that 
may  prosecute  an  action.  Neither  the  people  nor  the  different  school  organizations  can 
prosecute  the  suit  in  their  names.  The  County,  therefore,  is  a  proper  party  in  whose  name 
the  action  maybe  prosecuted.  Rev.  $$  2757,  2758.  We  do  not  determine  that  the  action 
could  not  be  properly  brought  in  the  name  of  the  State."— P^r  Beck,  C.  J. 

Cridler  v.  Curry  (iS73),66  Barb.  336.  [Action  upon  an  administrator's  bond,  assigned  by 
the  Surrogate  to  be  prosecuted  under  the  act  of  1S37]:  "  Section  1  13  of  the  [New  York] 
Code  authorizing  the  trustee  of  an  express  trust  to  sue,  is  merely  permissive,  and  does  not 
prevent  the  real  party  in  interest  from  suing  under  $111.  The  case  of  The  People  v.  Nor- 
ion,g'!<!.  Y.  176,  and  the  other  cases  referred  to  by  the  plaintiff,  where  actions  of  this  kind 
hav'e  been  brought  in  the  name  of  the  people,  only  hold  that  the  action  may  be  maintained 
in  that  form  under  $  113."— -P^?-  Talcott,  J. 

yladerov.  Morton  (1884),  6  N.  Y.  Civ.  Pro.  Rep.  23S.  [Action  against  the  sureties  on  a 
bond  given  by  an  auctioneer  to  the  mayor,  alderman,  and  commonalty  of  the  City  of  New 
York  ;  the  action  was  brought  in  the  name  of  one  w.io  had  lost  property  by  the  dishonest 
acts  of  the  auctioneer] :  "  While  the  bond  was  taken  by  the  mayor,  etc.,  as  obligees,  and 
nominally  as  beneficiaries,  it  was  only  as  trustees  of  an  express  trust  for  the  benefit  of  any 
person  injured  by  the  breach  of  its  condition.  The  plaintiff  in  his  complaint  charges  that 
the  auctioneer  converted  certain  property,  etc.;  appropriated  the  proceeds  of  certain  other 
property  sold  by  him  which  belonged  to  the  plaintiff  and  was  given  to  the  auctioneer  for 
sale.  It  is  charged  that  such  acts  on  the  part  of  the  auctioneer  were  '  fraudulent  and  dis- 
honest practices,'  and  within  the  provisions  of  the  bond.  In  this  conclusion  I  concur.  The 
demurrer  admits  the  facts.  The  complaint  shows  that  the  plaintiff  was  injured  by  the  acts 
of  the  auctioneer,  secured  against  by  the  bond,  and  that  he  is  entitled  to  the  proceeds  of 
the  recovery  herein.  No  interest  in  the  result,  because  of  the  special  breach  charged,  is 
to  be  in  the  mayor,  etc.  The  plaintiff  is  the  real  and  only  party  in  interest,  and  the  action 
is  properly  brought  in  his  name.  (Code  Civil  Pro.  15449.)  The  section  referred  to  permits 
an  action  to  be  brought  by  the  trustee  of  an  express  trust  for  the  benefit  of  his  ces^tui  que 
trust,  but  it  does  not  preclude  the  real  party  in  interest  from  suing  to  enforce  the  liability 
incurred  by  the  obligors."— P^r  Browne,  J.,  delivering  opinion  of  City  Court  of  New 
York,  Special  Term. 

First  Baptist  Church  t.  Bra7iham  (1S91),  90  Cal.  22.  [A  corporation  sued  in  its  corporate 
name  to  restrain  the  defendant  from  interfering  with  certain  real  and  personal  property  of 
which  the  corporation  claimed  to  be  the  owner,  and  to  quiet  its  title  thereto.  Defendant 
denied  that  the  plaintiff  was  seized  and  possessed  of  the  property;  it  appeared  that  the 
real  property  had  been  formally  conveyed  to  certain  individuals,  named  in  the  deed,  trus- 
tees of  the  corporation]:  "  While  the  dry,  naked,  legal  title  to  the  property,"  said  the 
Court,  "  may  not  be  in  the  plaintiff,  yet  its  trustees  hold  it  in  trust  for  the  uses  of  plaintiff, 
and  their  ownership  and  possession  is  the  ownership  and  possession  of  the  plaintiff.  We 
can  not  understand  how  it  is  material  to  the  interests  of  defendants  in  the  action  whether 
the  plaintiff  or  its  trustees  is  technically  seized  of  the  legal  title  to  this  realty;  the  plaintift 
certainly  has  sufficient  interest  to  bring  this  action."— P^r  Garouttk,  J. 

Hutchison  v.  Myers  (1893),  54  Kan.  2go.  [One  Myers,  the  beneficiary  in  a  mortgage  trust 
deed  securing  a  note,  sued  on  the  note  and  to  foreclose  in  his  own  name,  making  the  trus- 
tee a  party  defendant.  On  demurrer  it  was  contended  that  Myers  could  not  maintain  the 
action]:  Said  the  Court:  "It  is  conceded  that  he  might  prosecute  an  action  in  his  own 
name  to  recover  a  personal  judgment  for  the  amount  of  the  debt  secured,  but  as  the  prop- 
erty was  conveyed  to  Holmes  for  the  benefit  of  Myers,  it  is  claimed  that  Holmes  alone 
could  maintain  the  action  for  foreclosure.  This  claim  is  based  on  %  28  of  the  Civil  Code, 
which,  among  other  things,  provides  that  the  trustee  of  an  express  trust  may  bring  an  ac- 
tion without  joining  with  him  the  person  for  whose  benefit  it  is  prosecuted.  Although  the 
trust  deed  purports  to  convey  to  the  trustee,  it  is  made  for  the  mere  purpose  of  securing  a 
debt,  and  is  no  more  than  a  mortgage,  and  can  only  be  enforced  as  such.  McDonald  v. 
Kello<rg, zoyia.r\.  170.  But  granting  that  Holmes,  who  is  named  as  trustee  in  the  instru- 
ment^is  the  trustee  of  an  express  trust,  we  see  no  reason  why  the  beneficiary  may  not 
prope'rly  bring  the  action.  In  this  case  the  trustee  was  made  a  defendant,  and  was  thereby 


RIGHT  OI'   TIIIv  BENEFICIARY  TO  SLI..  599 

fiiablcd  to  secure  any  ri;;ht  or  protect  any  interest  tliat  lie  might  have  in  the  transaction. 
The  general  rule  in  that  state  is,  that  the  party  beneficially  interested  shall  bring  the  ac- 
tion; but,  for  convenience  and  necessity,  provision  is  made  for  the  prosecution  of  actions 
by  representative  parties.  .  .  .  As  will  be  observed,  the  provision  authorirjng  the 
trustee  to  bring  an  action  is  permissive  rather  than  mandatory  in  its  terms,  and  hence  will 
not  preclude  the  maintenance  of  an  action  in  the  name  of  the  real  party  in  interest.'' — Per 
Johnston,  J.,  citing  Price  v.  Insurance  Co.,  17  Minn.  497. 

See  aI>o  Rice  v.  Savery  (1S67),  2J  Iowa,  470,  47S;  ante  p.  243,  247.  Strohn  v.  llartjord  Fire 
Ins.  Co.  (1S73),  33  Wis.  64S,  657.  Dayton  v.  Johnson  (1877),  69  N.  Y.  419,  42S.  Williams  v. 
Kiernan  (iSSi),  25  Hun  355,  356.  Potter  v.  Potter  (1885),  S  N.  Y.  Civ.  Pro.  Rep.  150,  153. 
Compare  llarljord  Co.  v.  Monroe  Miller  (1874),  41  Conn.  112.  — Ed. 


600  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


II.      OTHER    INSTANCES   OF  ACTIONS   IX   THE   NAMES   OE 
REPRESENTATIVES. 

/     Executors  and  Adjiiiiiistraiors. 

Note. — While  the  Codes  class  executors  and  administrators  with  trustees  of  express 
trusts  as  representatives  who  may  sue  without  joining  their  beneficiaries,  it  will  be  ob- 
served that  the  status  of  an  executor  or  administrator  is  close  akin  to  that  of  the  real 
party  in  interest,  so  far  as  respects  the  maintenance  of  the  action.  The  point  has  already 
been  noticed  (««/^  pp.  520-535).  One  other  question,  howjgvex,x&niains.  Granted  that  the 
action  must  be  by  the  executor  orlidministrator.  when  must  it  be  by  him  as  executor  or  ad- 
'ministrator,  and  when  by  him  individually? 


SHELDON    V.  HOY. 

Supreme  Court  of  New  York,  General  Term,  March,  1855. 

[11  Hozi'.  Pr.  II.] 

Appeal  from  an  order  at  special  term  overruling  a  demurrer  to  an 
amended  complaint,  which  was  as  follows  : 

'^Monroe  County,  ^.y.— Stephen  S.  Sheldon,  administrator  of  the  goods, 
chattels,  and  credits  of  Job  Phelps,  late  of  Clarkson,  deceased,  plaintiif  in 
this  action,  complains  of  James  Hoy,  defendant  in  this  action,  for  this, 
to  wit : 

"That  on  the  first  day  of  September,  1S51,  at  the  town  of  Clarkson,  in 
the  County  of  Monroe,  Job  Phelps,  deceased,  was  possessed,  as  of  his  own 
property,  of  one  bay  horse-colt,  of  the  age  of  four  or  five  years  then  past, 
one  buggy  wagon,  one  double  harness,  and  one  promissory  note  of  the 
amount  of  $80,  dated  about  two  years  past,  made  by  the  said  defendant,  and 
one  promissory  note  of  the  amount  of  $50,  dated  about  one  year  then  past, 
made  by  the  said  defendant;  —  of  the  value  of  $300;  and  being  so  pos- 
sessed thereof,  the  said  goods,  chattels,  and  credits  on  the  day  and  year 
first  aforesaid,  at  the  place  aforesaid,  came  into  possession  of  the  said  de- 
fendant, who,  though  often  requested  so  to  do,  has  not  delivered  the  said 
goods,  chattels,  and  credits  aforesaid  to  the  said  plaintiff  as  administrator 
aforesaid;  and  the  said  defendant  wrongfully  detains  from  the  plaintiff, 
as  administrator  aforesaid,  the  said  goods,  chattels,  and  credits  aforesaid. 

"And  afterwards,  to  wit:  on  the  lotli  day  of  November,  1851,  at  the  town 
of  Clarkson,  and  in  the  county  of  Monroe,  the  said  plaintifiF,  as  adminis- 
trator of  the  goods,  chattels,  and  credits  of  Job  Phelps,  deceased,  was  pos- 
sessed of  one  other  bay  horse-colt,  one  buggy  wagon,  one  double  harness, 
one  promissory  note  of  $80,  dated  about  two  years  then  past,  made  by  the 
said  defendant,  and  one  promissory  note  of  ^50,  dated  about  one  year  then 
past,  made  by  the  said  defendant;  —  of  the  value  of  I300;  and  being  so 
possessed  thereof  the  said  goods,  chattels,  and  credits  aforesaid,  on  the 
day  and  year  aforesaid,  and  the  place  aforesaid,  came  into  the  possession 
of  the  defendant,  who,  although  often  requested  so  to  do,  has  not  as  yet 
delivered  the  said  goods,  chattels,  and  credits  aforesaid  to  the  said  plain- 
tiff, as  administrator  as  aforesaid  ;   but  wrongfully  detains  the  said  goods. 


SIIELDOX 


IIOV 


601 


chattels,  and  credits  aforesaid  from  the  said  plaintifi",  as  administrator 
as  aforesaid ; 

"Wherefore  the  said  plaintifi",  as  administrator  as  aforesaid,  demands 
that  the  defendant  may  l)e  adjudged  to  pay  the  said  plaintiff,  as  adminis- 
trator aforesaid,  the  sum  of  ^300,  with  interest  from  the  first  day  of 
November,  1851,  besides  costs. 

"January  19,  1852." 

To  this  complaint  the  defendant  demurred  : 

1.  It  is  not  averred,  and  does  not  appear  on  the  first  count  or  pre- 
tended cause  of  action  in  the  said  complaint,  that  the  plaintiff  is  the 
administrator  of  the  goods,  chattels,  and  credits  of  Job  Phelps,  deceased; 

2.  It  does  not  appear  that  the  defendant  has  converted  to  his  use  the 
goods,  chattels,  and  credits,  or  any  or  either  of  them,  in  the  said  count  or 
pretended  cause  of  action  mentioned; 

5.  It  does  not  appear  in  the  second  count,  or  pretended  cause  of  action 
in  the  said  complaint,  that  the  plaintiff  ever  had  any  property  in,  or  right 
of  possession  of,  the  goods,  chattels,  and  credits,  or  any  or  either  of  them, 
in  the  said  second  count  or  pretended  cause  of  action  mentioned  ; 

6.  The  said  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

SimcoJi  B.  Jezi'elt,  for  plaintiff. 

Munger  &  Pomeroy,  for  defendant. 

By  the  Court — Johnson,  J. — The  objections  relied  upon  by  the  de- 
fendant's counsel  are  those  stated  in  the  first,  second,  and  fifth 
grounds  of  demurrer. 

The  first  count  is  for  a  conversion  of  the  property  during  the  life- 
time of  the  intestate,  and  the  plaintiff  can  maintain  the  action  for 
that  cause  in  a  representative  capacity  only.  It  is  conclusively 
settled  by  authority,  that  a  complaint  commencing  like  the  present, 
and  containing  no  other  allegations  or  statement  of  fact  of  the  plain- 
tiff's appointment,  does  not  allege  that  he  is  an  administrator,  or 
show  that  he  prosectites  in  that  capacity.  The  introductorj'  statement 
is  a  dcscriptio  personce  rs\^x€iyy 

This  being,  by  the  rules  of  the  pleading,  a  count  in  favor  of  the 
plaintiff  in  his  individual  right,  it  does  not  contain  a  statement  of 
facts  constituting  a  cause  of  action.  The  fact  that  the  plaintiff  is 
administrator,  and  has  been  regularly  appointed  by  the  surrogate  of 
some  county  in  this  state,  is  a  material  and  traversable  fact,  and  must 
be  stated  in  such  form  as  to  tender  an  issue  to  the  other  party.  It 
will  scarcely  be  pretended  that  matter  which  is  merely  descriptive  of 

^Cititiif,  Merritt  agt.  Seaman,  2  Selden,  16S;  Gillett  agt.  Fairchild,  4  Denio,  80,  83; 
Be.ich  agt.  King,  17  Wend.  197;  Stanley  agt.  Chappell,  8  Cow.  235;  People  agt.  Mayor's 
Court,  9  Wend.  490;  White  agt.  Law,  7  Barb.  204.  "Many  other  cases  might  be  cited,  but  it 
is  unnecessary." 

"In  Merritt  agt.  Seaman  the  Court  of  appeals  reversed  the  judgment,  on  the  ground 
that  the  defendant  had  recovered  a  set-ofF  against  the  pl.-iintitf  in  his  representative 
capacity  The  declaration  was  in  form,  except  that  the  action  was  different,  like  the  com- 
plaint here;  and  it  was  held  to  be  an  action  by  the  plaintiff  in  his  individual  and  not  in 
his  representative  capacity,  in  which  no  set-off  against  the  estate  could  be  allowed." 


602  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

the  person  of  the  plaintiff  is  issuable  matter,  or  that  it  constitutes 
any  part  of  the  cause  of  action. 

The  learned  judge,  at  the  special  term,  is  mistaken  in  supposing 
that  the  complaint  in  this  case  conforms  to  the  former  precedents.  It 
will  be  seen,  on  examination,  that  in  all  the  forms  of  declarations  in 
trover  by  an  administrator,  there  is  contained,  in  addition  to  the  gen- 
eral profert,  in  the  body  of  each  count,  a  particular  averment  of  the 
granting  of  administration ;  and  the  first  count  was  always  to  contain 
a  particular  statement  of  the  time  and  place  of  granting,  and  the 
functionary  by  whom  administration  was  granted  to  the  plaintiff.  2 
Chit.  PI.  840,  84 1,  6th  Am.  from  5th  London  ed.     See  also  Till.  Form 

438.  439- 

This  must  always  have  been  necessary-,  as  without  such  an  aver- 
ment the  declarations  would  show  no  right  in  the  plaintiff.  The  pro- 
fert itself,  I  apprehend,  was  never  traversable,  although  the  excuse 
for  omitting  it  was.  i  Chit.  398.  No  action  can,  therefore,  be  main- 
tained on  the  first  count.  It  shows  no  title  in  the  plaintiff,  and  no 
conversion  by  the  defendant  of  the  plaintiff's  property,  in  any  point 
of  view. 1 

»"  The  defendant  can  not  be  administrator  unless  letters  of  administration  of  the  goods, 
chattels,  and  credits  of  the  intestate  have  been  granted  to  him  by  one  of  the  Surrogates  of 
the  state.  (2  R.  S.  78,  %%  23,  24.)  The  proper  mode  of  pleading  the  fact  is  by  a  direct  alle- 
gation that  such  letters  were  granted.  The  delendant  has  not  pursued  that  course,  but 
pleads  that  he  zvas  duly  appointed  administrator.  This  allegation  consists  partly  of  matter 
of  fact  and  partly  of  matter  of  law,  and  is  not  capable  of  trial.  That  the  defendant  was 
appointed  administrator  by  somebody,  or  in  some  form,  is  a  question  of  fact;  but  whether 
he  was  duly  appointed  or  not  is  a  question  of  law.  The  defendant  should  have  stated  how 
he  viras  appointed,  and  then  the  court  could  determine  its  sufficiency  upon  demurrer,  or  if 
an  issue  to  the  country  were  joined  upon  the  fact  of  having  obtained  letters,  the  question 
could  be  tried  by  jury."— P^r  BrONSON,  J.,  in  Beach  v.  King  (1S37),  17  Wend.  197.  "  The 
complaint  should  state  the  death  of  Folsom,  his  leaving  a  last  will  and  testament,  the  ap- 
pointment therein  of  the  plaintiffs  as  executors,  the  probate  of  the  will,  the  issuance  of 
letters  testamentary  thereon  to  the  plaintiffs,  and  their  qualification  and  entry  upon  the 
discharge  of  their  duties  as  executors."— /'t-r  Field,  C.  J.,  in  Halleck  v.  Miner  (1S60),  16 
Cal.  574,  579. 

Accordingly,  it  has  been  held  insufficient,  in  the  absence  of  a  statute  specially  permitting 
it,  to  aver  merely  that  the  plaintiffs  "  have  been  duly  appointed  and  qualified  by  the  Sur- 
rogate of  the  County  of  New  York  to  act  as  the  sole  executors  of  Daniel  Fanshaw,  de- 
ceased." Forrest  v.  The  Mayor  (1S61),  13  Abb.  Pr.  350.  For  instances  of  averments  held 
sufficient,  as  against  a  demurrer  for  lack  of  capacity  to  sue,  see  Munro  v.  Dredging  Co. 
(1890),  84  Cal.  515;  Brenner  v.  McMahon  (1S97),  20  App.  Div.  3. 

In  some  states,  it  is  expressly  provided  that  an  executor,  etc.,  need  not  aver  the  facts  con- 
stituting his  capacity  to  sue,  but  may  setup  the  legal  conclusion.  See  %  3627,  Iowa  Code, 
1S97,  and  Mayes  v.  Turley  (1882),  60  Iowa,  407,  410. 

On  the  mode  of  objecting  see  Secor  v.  Pendleton  <,\'?&'S).  ^1,1  Hun  281.  The  complaint  al- 
leged that"  letters  of  administration  were  duly  issued  and  granted  unto  plaintiff,  who  is 
in  fact  alone  entitled  to  the  possession  of  and  has  sole  power,  as  administrator,  etc.,  to  col- 
lect the  assets  and  liquidate  the  business  affairs  of  said  firms."  It  did  not  state  that  the 
intestate  died  leaving  property  in  the  State,  or  that  letters  of  administration  had  been  is- 
sued upon  his  estate  by  any  Surrogate  having  that  authority  in  New  York.  There  was  a 
demurrer  on  the  ground  that  the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  Said  the  General  Term,  per  Daniels,  J.,  p.  2S3:  "As  it  [the  complaint]  was 
framed,  it  did  not  disclose  the  existence  of  any  legal  capacity  on  the  part  of  the  plaintiff 
to  maintain  the  action.  In  Sheldon  t.  Hoy,  11  How.  Pr.  11,  the  objection  was  raised  by  the 
statement  in  the  demurrer  that  it  did  not  appear  tliat  the  plaintiff  was  the  administrator  of 


TilOMl'SON  Z:  WIUTMARSH.  G03 

Bi:t  I  am  of  opinion,  that  all  the  facts  necessary  to  constitute  a  good 
cause  of  action  are  stated  in  the  second  count.  This  is  to  be  regarded 
as  a  complaint  by  the  plaintiff  in  his  own  right,  and  not  in  his  capac- 
ity as  administrator. 

An  administrator  could  al\va3S  bring  trover  in  his  own  name,  \vith-|i  n  / 
out  declaring  his  representative  capacity,  for  the  goods  of  his  intestateU  JL^  y* 
converted  after  his  death,  even  though  the  conversion  was  before  thej\  ^ 

granting  of  administration;  because  the  granting  of  administration 
related  back  to  the  time  of  the  death,  and  gave  the  administrator  title  f*^ 

by  relation.      Vale?itme  agt.  Jackson,  g  Wend.  302.     This  has  not  been 
changed  b}'  the  Code.' 

The  ninth  cause  of  demurrer  is  to  the  whole  complaint;  and  the 
second  count  being  good,  the  plaintiff  must  have  judgment.  The 
judgment  of  the  special  term  must,  therefore,  be  affirmed. 


THOMPSON  V.  WHITMARSH. 

Court  of  Appeals  of  New  York,  October  6,  1885. 

[100  A^.  V.  35.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme 
Court,  entered  upon  an  order  affirming  a  judgment  in  favor  of  the 
plaintiff,  entered  upon  the  report  of  a  referee. 

This  action  was  brought  to  recover  the  purchase-price  of  certain 
personal  property  which  came  into  the  hands  of  the  plaintiff  as  ex- 
ecutrix of  Charles  Thompson,  who  died  insolvent.  The  defendant  set 
up  as  a  counter-claim  a  promissory  note,  executed  by  the  decedent  to 
him.     This  was  not  allowed  by  the  referee. 

the  goods,  chattels  and  credits  of  the  deceased  intestate,  which,  though  not  in  the  lan- 
guage of  the  Code,  was  substantially  an  assertion  of  the  objection  that  the  plaintiff  was 
without  legal  capacity  to  sue.  And  in  Cheney  v.  Fisk,  22  How.  Pr.  236,  a  demurrer  in  this 
form  was  also  considered  to  be  essential  to  the  presentation  of  this  objection.  And  that 
it  can  not  be  considered  under  a  demurrer  in  the  form  adopted  by  the  defendants  is  main- 
tained in  Fulton  Fire  Ins.  Co.  v.  Baldwin,  37  N.  Y.  64S,  and  People  ex  rel.  v.  Crooks,  53  N. 
Y.  64S.  .  .  .  By  failing  to  present  the  objection,  by  the  demurrer,  that  the  plaintifi"  had 
not  the  legal  capacity  to  recover  the  demand^the  objection  has  been  waived.  Code  of 
Civ.  Pro.  $  499.  And  that  waiver  will  permit  the  plaintiff,  as  administrator,  to  maintain 
this  action,  notwithstanding  the  defective  averment  of  his  appointment  to  act  as  such." 

That  a  different  rule  applies  when  the  action  is  against  an  executor:  Kingsland  v.  Stokes 
(1879)1  58  How.  Pr.  I ;  affirmed,  61  How.  Pr.  494;  Kirsch  v.  Derby  (1S92),  96  Cal.  602. 

For  the  application  of  like  principles  to  receivers,  etc.:  White  v.  Joy  (1S5:;),  13  X.  Y. 
83;  Stewart  v.  Beebe  (1858),  28  Barb.  34,  37;  Dayton  v.  Connah  (1859),  iS  How.  Pr.  326. 

—Ed. 
>  In  the  omitted  portion  of  the  opinion  the  court  held  that  the  second  count  stated  facts 
sufficient  to  constitute  a  cause  of  action,  since  an  allegation  that  goods,  "  after  being  in  the 
possession  of  the  pl.-iintiff  came  into  the  possession  of  the  defendant,  who,  although  re- 
quested so  to  do,  had  not  delivered  the  same  to  plaintifi'  but  wrongfully  detained  them 
from  him,"  is  sufficient  to  establish  a  conversion. 


004  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

^.  P.  Smith,  for  appellant. 

Frmiklin  Pierce,  for  respondent.^ 

Finch,  J. — It  is  not  denied  in  this  case  that,  irrespective  of  sections 
449  and  1814  of  the  Code,  and  before  its  enactment,  an  executor  or  ad- 
ministrator, seeking  to  enforce  a  contract  made  b}-  himself  and  not  by 
the  decedent,  could  sue  in  his  own  name;  and  that  in  such  action  a 
demand  against  the  decedent  belonging  to  the  defendant  could  not  be 
used  as  a  counter-claim  to  diminish  or  extinguish  the  recovery.  It  is 
insisted,  however,  that  the  effect  of  these  sections  is  to  change  the 
law,  and  compel  the  executor  or  administrator  to  sue  in  his  represen- 
tative capacity  where  his  recovery  will  be  assets,  and  is  for  the  bene- 
fit of  the  estate. 

Under  section  449  everj-  action  must  be  brought  by  the  real  party 
in  interest,  and  where  the  recovery  is  wholly  for  the  benefit  of  the  es- 
tate, it  is  said  that  such  real  party  in  interest  is  the  executor  or  ad- 
ministrator, and  not  the  individual  who  happens  to  be  charged  with 
the  trust  duties.  And  this  contention  is  claimed  to  be  strengthened 
by  the  language  of  section  18 14,  that  "  an  action  or  special  proceed- 
ing, hereafter  commenced  by  an  executor  or  administrator,  upon  a 
cause  of  action  belonging  to  him  in  his  representative  capacity  .  . 
must  be  brought  b}'     .     .     him  in  his  representative  capacitj'." 

Here  the  plaintifi"  is  executrix,  and  sold  upon  credit  property  of  the 
estate  to  the  defendant,  who  holds  an  unpaid  note  of  the  decedent. 
The  estate  is  insolvent,  and  if  the  defendant  can  use  his  demand  as  a 
counter-claim,  he  alone  of  all  the  creditors  can  secure  a  preference  out 
of  the  assets,  and  be  paid  in  full  at  the  expense  of  others  equally  en- 
titled to  payment.  The  result  would  overturn  the  whole  sj'stem  of 
distribution  to  creditors,  and  compel  executors  and  administrators 
never  to  sell  on  credit  at  public  auction  where  creditors  of  the  de- 
ceased could  buy,  or  in  some  unexplained  waj-  exclude  them  from  the 
list  of  purchasers.  No  such  construction  of  the  Code  is  permissible. 
,  Where  an  executor  or  administrator  sells  on  credit  the  property  of  the 
j  estate,  and  sues  to  recover  the  debt,  he,  as  an  individual,  is  the  real 
Iparty  in  interest,  for  the  contract  is  made  with  him,  and  the  promise 
(jto  pay  runs  to  him,  and  he  is  personally  accountable  for  the  assets 
'which  he  has  sold.  For  the  same  reason  the  debt  does  not  belong  to 
him,  in  his  representative  capacity  within  the  intent  and  meaning  of 
the  section  of  the  Code  referred  to.  That  phrase  relates  to  debts 
which  belonged  to  the  testator  or  intestate,  and  came  to  the  executor 
or  administrator  through  his  representation  of  the  deceased  rather 
than  as  the  result  of  his  own  action.  The  efiect  of  the  section,  and 
the  change  produced  by  it,  is  upon  the  class  of  cases  in  which  the  ac- 
tion could  have  been  maintained  in  either  form ;  as  where,  upon  a  con- 
tract made  with  the  testator,  the  cause  of  action  accrued  after  his 
death ;  or  where,  upon  a  debt  or  obligation  due  to  the  deceased,  the 

'  The  arguments  are  omitted. 


BrUKELL   V.  KEARN.  G05 

executor  or  administrator  has  taken  a  new  securit}-  or  evidence  of 
debt.  In  these  cases,  before  the  Code,  the  action  might  be  in  the  in- 
dividual or  representative  name,  but  now  must  be  in  the  latter.  Upon 
new  contracts  made  by  the  executor  or  administrator,  and  never  ex- 
isting in  favor  of  the  decedent,  but  growing  out  of  the  contracts  and 
dealing  of  the  former  alone,  the  action  is  properly  brought  in  the 
name  of  the  individual,  and  a  debt  against  the  decedent  can  not  be 
made  the  subject  of  a  counter-claim.  It  must  be  paid  in  the  ordinary 
course  of  administration,  and  can  gain  no  preference,  as  it  is  entitled 
to  none. 

This  particular  ground  of  objection  appears  not  to  have  been  taken 
at  the  General  Term,  and  so  was  not  considered  in  the  opinion  there 
rendered,  which  sufficiently  answered  the  other  grounds  urged  in  sup- 
port of  the  appeal. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur. 1  Judgment  affirmed. 


BURRELL  :•.  KEARN. 

Supreme  Court  of  Oregon,  April  io,  1899. 

[34  Ore.  501.] 

This  was  a  suit  to  foreclose  a  mortgage.  The  plaintiffs  are  styled, 
in  the  caption  or  title  of  the  complaint,  "  Walter  F.  Burrell  and  D.  P. 
Thompson,  Executors,"  and  it  is  alleged,  among  other  things,  that  at 
all  the  times  stated  in  the  complaint  plaintiffs  were,  and  now  are,  the 
duly  appointed,  legally  qualified  and  acting  executors  of  the  last  will 
and  testament  of  M.  S.  Burrell,  deceased,  and  that  defendants  made; 

>  Compare  Gross  v.  Gross  (1S99),  26  Misc.  3S5:  [After  the  death  of  G.,  goods  belonging 
to  his  estate  were  sold  by  his  executors  on  credit,  and  these  goods  not  being  paid  for,  one 
of  the  executors  sued  as  executor  to  recover  the  price.  The  other  executor,  refusing  to  join 
as  co-plaintiff,  was  made  defendant  with  the  purchasers.  The  defendants  contended  that 
the  plaintiff  could  not  sue  as  executor.]  Said  the  Supreme  Court,  in  appellate  term,  re- 
viewing a  number  of  cases:  "  While  it  would  have  been  better  pleading  to  have  declared 
upon  the  plaintiff's  individual  right,  we  can  not,  under  the  authorities,  reject  the  com- 
plaint." 

See  also  Phillips^  £x''r,  v.  McConica^  Guardian  (1S9SJ,  59  O.  S.  1,7:  [The  defendant 
urged  that  the  plaintiff  had  no  legal  capacity  to  maintain  the  action  as  executor,  be- 
cause he  "can  maintain  an  action  in  his  own  personal  right  for  money  of  the  estate 
wrongfully  distributed,  as  held  in  Rogers  v.  Weaver^  5  Ohio,  536."]  But  said  the  court, 
per  BuKKET,J.:  "These  consider.-itions  are  not  sufficient  to  cut  off  his  right  to  maintain 
the  action  as  executor.  The  money  paid  to  the  guardian  was  the  money  of  the  estate,  and 
an  executor  is  always  a  proper  party  to  maintain  an  action  to  recover  money  belonging  to 
the  estate.  Other  existing  remedies  to  recover  money  wrongfully  paid  out,  do  not  exclude 
the  remedy  by  action  in  the  name  of  the  executor." 

Compare  also  Moss  v.  Cohen  (1S99),  15S  N.  Y.  240,  246:  "  That  the  plaintiff  entitled  the 
action  as  by  himself  individually  and  as  surviving  executor  in  no  way  discloses  a  mis- 
joinder of  causes  of  action.  There  is  no  pretense  nor  allegation  that  the  plaintiff  claimed 
more  than  a  single  right  of  recovery,  and  that  he  sought  to  enforce  as  executor  and  for  the 
benefit  of  the  estate  he  represents." — Per  Martin,  J.  — Ed. 


606  IN    WHOSE    NAME    THE   ACTION    SHOULD    BE    BROUGHT. 

executed,  and  delivered  to  plaintiffs  tlieir  certain  promissory  note,  a 
copy  of  which  is  set  forth,  showing  that  it  was  made  to  "  W.  F.  Barrel! 
and  D.  P.  Thompson,  Executors."  It  is  further  alleged  that,  for  the 
purpose  of  securing  the  payment  thereof  defendants  duly  made,  exe- 
cuted, and  delivered  to  plaintiffs  their  certain  mortgage;  and  in  all 
other  respects  the  complaint  is  in  the  usual  form. 

The  defendants  filed  a  motion  to  require  plaintiffs  to  make  the  com- 
plaint more  definite  and  certain,  so  as  to  show  the  name  of  the  de- 
ceased person  for  whose  estate  the  plaintiffs  sue  as  the  alleged  exec- 
utors. This  was  overruled,  and  thereupon  a  general  demurrer  was 
interposed,  on  the  ground  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  suit.  This  also  was  overruled,  and  de- 
fendants refusing  to  plead  further,  a  decree  as  prayed  for  was  entered, 
from  which  they  appeal. 

William  Wallace  Thayer  and  Henry  St.  Rayner,  for  appellant. 

Dolp/i,  Mallory  &  Simon,  for  respondents. 

WoLVERTON,  C.  J. — It  seems  to  be  the  theor^^  of  the  defendants  that 
suit  was  brought  by  the  plaintiffs  in  their  representative  capacity  as 
executors;  hence  the  interposition  of  both  the  motion  and  the  de- 
murrer. But  the  complaint  shows,  when  the  documents  upon  which  it 
is  based,  the  averments  touching  them,  and  its  whole  scope  are  con- 
sidered, that  the  plaintiffs  have  sued  in  their  individual,  and  not  in 
their  representative,  capacity.^ 

The  prevailing  rule  seems  to  be,  with  possibly  some  few  exceptions, 
that  when  the  cause  of  suit  or  action,  whether  in  contract  or  in  tort, 
accrues  after  the  death  of  the  testator  or  intestate,  the  money,  if  re- 
covered, will  be  assets  of  the  estate,  and  the  executor  or  administra- 
tor may  sue,  at  his  option,  in  either  his  representative  or  his  indi- 
vidual capacity. 2 

The  use  of  the  word  "  executors  "  in  the  title  of  the  case  and  in  the 
note  is  a  mere  descriptio  personce,  and  does  not  of  itself  operate  to 
attach  to  plaintiffs  a  representative  character,^  and  maj'  be  regarded 
as  surplusage.     Miller  v.  Kingsbury,  128  111.  45;  21  N.  E.  209. 

^Citing,  Beers  v.  Shannon,  73  N.  Y.  292. 

Compare  the  remark  of  Andrews,  C.  J.,in  First  National  Bank  v.  Shuler  (1S97),  '53 
N.  Y.  163,  172:  "  The  cases  mainly  are  of  two  classes,  those  where  the  cause  of  action  was 
upon  a  right  accruing  to  the  plaintiff  or  existing  against  a  defendant  in  a  representative 
character,  which  was  imperfectly  expressed  in  the  title  of  the  action,  and  cases  where  there 
^vas  an  unnecessary  addition  of  a  representative  title  to  the  name  of  the  parly,  when  in 
fact  the  cause  of  action  was  upon  an  individual  right  or  obligation.  In  these  cases  it  has 
been  held  that  the  title  and  pleadings  may  be  considered  together  to  ascertain  the  true 
nature  of  the  action,  and  the  action  will  be  treated  as  an  individual  or  representative  one, 
as  disclosed  upon  an  inspection  of  the  whole  record.  Stilwell  v.  Carpenter,  2  Abb.  N.  C. 
23S;  S.  C,  62  N.  Y.  639;  Beers  v.  Shannon,  73  N.  Y.  292;  Litchfield  v.  Flint,  104  N.  Y.  543; 
Jennings  v.  Wright,  54  Ga.  537;  Waldsmith  v.  Waldsmith,  2  Ohio,  156;  Pennock  v.  Gille- 
land,  I  Pitts.  Pa.  37." 

*Citing,  8  Enc.  PI.  &  Prac.  658;  Haskell  v.  Bowen,  44  Vt.  579;  Grimmell  v.  Warner,  21 
Iowa,  11;    Mowry  v.  Adams,  14  Mass.  527;   Kane  v.  Paul,  14  Pet.  33;   Bliss  Code  PI.  (3  ed.), 

%  S3- 

'Citing,  Beers  v.  Shannon,  73  N.  Y.  292;  2  Am.  &  Eng.  Enc.  Law  (ist  ed.),  334. 


liUUUELL  Z:  KEARN.  607 

As  the  note  and  mortgage  in  question  were  made,  executed  and  de- 
livered to  the  plaintifls,  and  not  to  their  testator,  they  were  authorized, 
under  the  rule,  to  sue  in  either  their  representative  or  their  individual 
capacity;  and  it  is  apparent  that  the  complaint  states  a  good  cause  of 
suit  in  one  or  the  other  capacity,  and  is  amply  sufficient  as  against  the 
test  of  a  general  demurrer.  Now,  it  was  a  matter  of  no  moment  to 
the  defendants  in  what  character  plaintiffs  prosecuted  their  suit  to 
foreclose,  as  they  could  have  set  up  whatever  defence  they  may  have 
in  this  suit  as  well  as  if  it  had  been  brought  in  any  other  forni,i  and 
hence  there  was  no  error  in  overruling  the  motion  and  demurrer,  or  in 
entering  the  decree  appealed  from,  which  will  therefore  be  aflSmied. 

On  treating-  the  use  of  the  word  "  executor,""  administrator,"  etc.,  as  a  mere  descriptio 
persona,  compare  Beers  v,  Sliaiinon  with  Litchfield  v.  Flint  (1SS7),  104  X.  Y.  543.  In  the 
former  case  it  was  objected  tliat  the  plaintifl"  was  not  suing  in  a  representative  capacity 
because  of  the  omission  of  the  the  word  "aj"  between  the  plaintiff's  name,  "5''o/'«  L. 
Beers,''''  and  the  description  of  him,  "  executor  of  Jolin  Beers,  deceased.''''  Said  the  Court, 
per  FoLGER,  J.:  "It  is  true  that  without  that  word, in  that  position, it  has  been  sometimes 
held  that  the  addition  to  the  name  of  the  party  is  but  ?l  descriptio  personce,  and  does  not 
give  to  him  other  than  a  personal  or  individual  character  in  the  action.  But  it  has  been 
held  on  the  other  hand,  that  though  there  be  naught  in  the  title  of  the  process  or  the  com- 
plaint to  give  a  representative  character  to  the  plaintiff,  the  frame  and  averments  and 
scope  of  the  complaint  may  be  such  as  to  aflix  to  him  such  character  and  standing.  Stil- 
vjell  -v.  Carpenter,  in  Mem.  62  N.  Y.  639,  reported  in  full  in  2  Abb.  N.  C.  23S."  And  in  the 
case  in  hand  it  was  held  that  the  plaintiff  sued  as  an  executor. 

In  Litchfield  V.  Flint  the  Court,  per  Earl,  J.,  remarked  (p.  550):  "While  the  note 
mentioned  in  the  complaint  cont.ains  a  promise  to  pay  E.  B.  Litchfield,  as  executor  of  the 
estate  of  H.  Maria  Litchfield,  deceased,  the  -words  quoted  [in  italics]  are  mere  descriptio 
persona.  There  is  nothing  in  the  complaint  showing  that  the  loan  was  made  by  him  as 
executor  and  in  no  other  capacity;  and  upon  the  facts  alleged  in  the  complaint,  if  Litch- 
field had  desired  to  commence  suit  directly  upon  the  note  against  the  maker  thereof,  he 
would  have  been  obliged  to  commence  it  in  his  individual  name,  and  in  that  capacity  he 
would  have  recovered.     Peck  v.  Mallams,  10  N.  Y.  509. 

"  So,  too,  although  in  the  title  of  this  action,  after  the  word  '  Litchfield  '  the  words  '  ex- 
ecutors of  the  last  will  and  testament  of  H.  Maria  Litchfield,  deceased,'  appear,  yet  the 
action  is  the  individual  action  of  Electus  B.  Litchfield.  The  whole  body  of  the  complaint 
shows  an  action  in  his  favor  to  enforce  an  agreement  made  by  him  individually  with  the 
defendant  for  the  payment  of  the  note  given  to  and  held  by  him  individually.  In  such  a 
case,  when  the  complaint  shows  a  cause  of  action  in  favor  of  the  plaintiff,  not  in  his  rep- 
resentative but  in  his  individual  character,  the  descriptive  words  may  be  rejected,  leaving 
the  action  to  stand  as  one  in  the  individual  capacity  of  the  plaintiff."  — Ed. 

1  Citing,  Miller  v.  Kingsbury,  12S  111.  45,  21  N.  E.  209. 


7^-» 


608  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 


2.     Guai'dians. 

Note. — In  nearly  one  third  of  the  codes,  guardians  stand  with  executors  and  adminis- 
trators, and  trustees  of  express  trusts,  as  representatives  who  may  sue  in  their  own  names 
without  joining  the  beneficiaries.'  Where  no  such  enactment  appears,  the  question  has 
been  raised  whether,  in  a  code  state,  a  guardian  may  not  sue  in  his  own  name  as  a  trustee 
'of  an  expiUbbl  Llust.  Ur  is  the  doctrine  on  this  point,  and  in  these  code  states,  still  that  of 
the  common  Taw  and  the  statute  of  Edward  the  First?=  In  states  where  the  enactment 
does  gpppar,  a  gimil^i-  quf'^flfr '^•"°'^' """^  f^rUpg-  Whether  a  guardian  may  sue  in  his 
own  name,  ""^o-  t-Vio  rnd^i  '"'^  tT""  "'"'"^  '""^  ^^.^o  nf  ""'C  before  action  is  brought. 


FERINE,  AS  GUARDIAN,  :•.  GRAND  LODGE. 

Supreme  Court  of  Minnesota,  January  i8,  1892. 

[48  Minn.  82.] 

Action  to  recover  $2,000  and  interest  on  account  of  the  death  of 
Sullivan  C.  Ferine  while  a  member  of  a  certain  lodg-e.  The  jur}-  re- 
turned a  verdict  for  plaintiff  for  $2,602.74.  The  defendant  moved  for  a 
new  trial,  and,  being  denied,  appealed  from  the  order.^ 

Adams  &  Pattee,  E.  SoJithzvorth,  and  Jos.  A.  Eckstein,  for  appel- 
lant.* 

Merrick  &  Merrick,  for  respondent. 

Mitchell,  J. — This  action  was  brought  by  and  in  the  name  of  Lou- 
isa Ferine,  probate  guardian  of  the  person  and  estate  of  Edward  G. 
Ferine,  a  minor,  to  recover  on  a  cause  of  action  in  favor  of  her  ward, 
as  beneficiary  of  a  contract  of  insurance  upon  the  life  of  his  father, 
alleged  to  have  been  made  by  the  defendant  with  the  father  as  a  mem- 
ber of  a  subordinate  lodge  of  the  order. 

The  action  should  have  been  brought  in  the  name  of  the  minor. 
The  rule  at  common  law  and  in  equit3'  was  that  an  infant  had  to  sue 
in  his  own  name  but  b}-  his  guardian  or  next  friend,  and  this  has  not 
been  changed  by  statute.     The  infant  is  the  real  part}'  in  interest,  and 

•  See  the  Codes  of  Kentucky,  Iowa,  Ohio,  Washington,  Nebraska,  Kansas,  Arkansas, 
Wyoming,  Oklahoma. 

*  "  At  common  law  there  \vas  no  warrant  nor  authority  for  a  suit  by  a  guardian  in  his 
own  name  for  the  benefit  of  the  infant,  although  he  might  disclose  his  fiduciary  character 
and  purpose.  .  .  .  At  law  the  action  must  have  been  brought  in  the  name  of  the  party 
having  the  legal  right.  The  guardian  could  of  course  sue  upon  contracts  made  with  him- 
self; but  not  generally  for  property  or  money  of  the  infant.  The  latter  was  required  to  be 
a  party  to  the  action,  which,  at  first,  he  brought  by  guardian,  and  afterwards  by  statute, 
might  bring  by  prochein  ami.  In  the  case  of  Stezuart  v.  Crabbin,  6  Mun.  280,  the  Supreme 
Court  of  Virginia  reversed  a  judgment  rendered  in  favor  of  a  guardian  in  an  action 
brought  by  himself,  upon  the  ground  that  the  action  should  have  been  in  the  name  of  the 
infant.  That  was  trespass  for  an  assault  and  battery  on  the  infant;  but  there  was  no  dif- 
ference, in  principle,  between  such  an  action  and  one  for  a  money  demand  for  breach  of  an 
obligation.  Such  w^as  the  practice  of  this  state  before  the  Code." — Per  Eakin,  J.,  in 
Turner  v.  Alexatider  (1S83),  41  Ark.  254,  257.  — Ed. 

'The  statement  of  facts  has  been  abridged. 
*The  arguments  are  omitted. 


PERXNE,  AS  (UAKniVX,  t'.  C.RAXD  UJDGi:.  G09 

the  general  .statutory  rule  is  that  every  action  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest.  187S  G.  S.  Ch.  66,  g  28,  pro- 
vides that  an  executor  or  administrator,  a  trustee  of  an  express  trust, 
or  a  jjcrson  exjjressly  authorized  b}-  statute  maj'  sue  without  j(jining 
with  him  the  person  for  whose  benefit  the  action  is  prosecuted.  But 
a  guardian  appointed  ])V  the  probn^(,i  court  is  not;  a  trustee  of  an  ex-' 
])rcss  trust  but  an  officer  of  the  court.  There  would  seem  to  be  no 
good  rea.son  WI13'  tlie  statute  should  not  have  placed  a  guardian,  as  re- 
spects his  capacit}-  to  sue,  upon  the  same  footing  as  an  executor  or  ad- 
ministrator, but  it  has  not  done  so  in  any  case,  unless,  possibh-,  under 
1878  G.  S.  Ch.  66,  ^§33,  34,  in  the  case  of  the  seduction  or  injur\-  of 
the  ward — a  question  which  we  have  no  occasion  to  consider  here. 

Section  148  of  the  Probate  Code  (Laws  1S89,  Ch.  46)  provides  that 
ever}-  guardian  shall  demand,  sue  for,  and  receive  all  debts  due  his 
ward.  The  same  provision  was  found  in  1878  G.  S.  Ch.  59,  §  29.  But 
this  was  merely  a  re-enactment  of  the  common  law  rule  that  a  suit  b}- 
an  infant  must  be  brought  b}'  his  guardian.  The  statute  does  not  sa}- 
that  the  guardian  shall  bring  the  suit  in  his  own  name. 

But  while  this  action  should  have  been  brought  in  the  name  of  the 
ward,  yet  the  guardian  is  a  proper  party  to  the  record.  He  is  reall}- 
the  active  party  who  institutes  the  suit  and  has  the  entire  control  of 
its  prosecution.  In  such  a  case  we  have  no  doubt  of  the  power  of  the 
court,  either  before  or  after  judgment,  in  furtherance  of  justice,  to 
amend  by  inserting  the  name  of  the  ward  as  plaintiff.  1878  G.  S.  Ch.  I 
66,  §  1 24.  The  only  person  who  has  any  control  over  the  action  is  al- 
ready in  court,  and  a  party  to  the  record.  The  only  object  in  insert- 
ing the  name  of  the  infant  as  plaintiff  is  that  the  judgment  in  the  ac- 
tion may  be  a  bar  to  an}--  subsequent  actions  by  him  or  in  his  name.i 

1  Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point.  The  order  was  re- 
versed on  other  grounds. 

On  the  question  whether  a  general  guardian  is  a  trustee  of  an  express  trust  within  the 
meaning  of  the  Code,  and,  as  such,  may  sue  in  his  own  name,  see  Person  v.  Warren 
(1852),  14  Barb.  488,492;  Thomas  v.  Bennett  (1S6S),  56  Barb.  197,201;  Hauenstein  v.  Kull 
(iSSo),  59  How.  Pr.  24;  Coakley  v.  Maher  (1SS5),  36  Hun,  157;  Buermann  v.  Buermann  (1SS6). 
17  Ahb.  N.  C.  391;  Bager  r.  Phillips  {1SS6),  17  Abb.  N.  C.  425;  Perkins  v.  Stimmel  (1S86), 
52  llun,  520. 

In  Perkins  v.  Stimmel  (1S89),  114  N.  Y.  359,  363,  Potter,  J.,  remarks:  "In  Thomas  t. 
Bennett,  56  Barb.  197,  it  was  held  that  a  general  guardian  appointed  by  the  Surrogate  can 
maintain  an  action  in  his  own  name,  as  such  guardian,  to  recover  a  debt  due  to  his  ward. 
Judge  Foster,  writing  tlie  opinion  of  the  General  Term,  reviews  a  great  number  of  cases 
in  the  Supreme  Court  and  the  old  courts  of  chancery,  and  reaches  the  conclusion  stated  as 
above.  He  seems  to  have  reached  that  conclusion  through  analogy  to  similar  cases  brought 
by  a  committee  of  a  habitual  drunkard  or  lunatic;  based  upon  the  principle  that  such 
guardian  as  well  as  such  committee  is  a  trustee  of  an  express  trust,  and  has  absolute  do- 
minion over  the  personal  property  of  the  ward,  with  power  to  sell  and  confer  good  title 
upon  the  purchaser,  to  settle  any  debts  and  claims  belonging  to  his  ward,  and  to  collect 
the  distributive  share  of  the  ward  in  the  estate  of  deceased  persons.  It  was  held  in  the 
same  manner  in  Hauenstein.  v.  Kull,  59  How.  Pr.  24.  That  case  was  followed  and  the 
same  conclusion  reached  in  Coakley  v.  Maher,  36  Hun,  157,  Judge  FoUctt  writing  the  opin- 
ion, which  was  concurred  in  by  Judges  Hardin  and  Boardman.  The  question  was  tirst 
practically  raised  in  this  court  in  Segclken  t.  Meyer,  94  X.  Y.  473.  In  that  case  an  action 
was  brought  by  an  infant  [in  his  own  name]  by  his  guardian  ad  litem,  and  the  action  was 


610  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROTTGHT. 


V 


J' 


■y 


y  1^  REED,  GUARDIAN,  v.  LANE  ET  AL. 

Supreme  Court  op  Iowa,  December  13,  1895. 
[96  loiva,  454.] 

Action  at  law  by  the  guardian  of  one  Lizzie  Hostert  and  other 
minors  upon  the  bond  of  a  former  guardian  of  the  same  persons.  To 
an  amended  petition  the  defendants  filed  what  purported  to  be  "  an 
equitable  answer"  ;  and  to  the  first  division  of  that  answer  the  plain- 
tiffs demurred,  on  the  ground  that  "  the  facts  therein  alleged  did  not 
constitute  any  defence."     This  demurrer  was  sustained.i 

Stilivell  &  Stewart,  for  appellants. 

James  H.  Treiviii,  for  appellee. 

Robinson,  J. — It  is  said  that  the  demurrer  to  the  first  division  is 
not  well  taken.  That  alleges  that  although  the  plaintiff  was  at  one 
time  the  guardian  of  Lizzie  Hostert,  she  had  before  the  commence- 
ment of  this  action  attained  the  age  of  majority,  and  that,  so  far  as 
she  is  concerned,  the  action  is  not  brought  in  the  name  of  the  real 
party  in  interest. 

Section  2543  of  the  code  requires  that  every  action  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  except  as  provided  in  the  next 
section.  That  permits  executors,  administrators,  guardians,  and 
some  others  who  act  in  a  representative  capacity,  to  sue  in  their  own 
names  without  joining  the  parties  for  whose  benefit  the  actions  are 
prosecuted.  It  is  the  general  rule  that  when  a  ward  attains  his  ma- 
jority he  may  demand  an  accounting  of  his  guardian,  and  that  the 
duties  of  the  latter  with  respect  to  the  active  management  of  the  es- 
tate cease ;  the  ward  then  stands  in  the  relation  of  creditor  to  the 
guardian.     Humphreys  v.  Mattoon,  43  Iowa,  556.  But  the  guardianship 

to  recover  property  belonging  to  the  infant.  The  infant  at  the  same  time  had  a  general 
guardian,  and  the  question  presented  was  whether  the  action  should  have  been  brought 
in  the  name  of  the  general  guardian  or  in  the  name  of  the  infant  by  his  guardian  ad  litem. 
The  Court,  in  the  opinion  in  that  case,  reviews  numerous  cases,  and  especially  Thomas  v. 
Bennett,  and  comes  to  the  conclusion  that  an  action  to  recover  money  or  personal  property 
belonging  to  an  infant  is  properly  brought  in  his  own  name  by  his  guardian  ad  litem.  .  . 
In  reviewing  these  various  cases  upon  this  question  I  have  been  impressed  with  what  I 
think  is  the  plain  theory  of  the  Code,  and  of  the  practice  upon  this  subject,  viz.,  that  all 
actions  brought  by  an  infant  should  be  brought  in  the  name  of  the  infant  by  a  guardian  ad 
litem.  .  .  But  while  I  have  reached  this  conclusion,  as  a  general  rule  of  practice,  it  can 
not  avail  the  defendant  in  this  case  [the  action  was  in  the  name  of  the  general  guardian] 
as  the  objection  [to  the  legal  capacity  to  sue]  was  not  raised  by  demurrer  or  answer." 

It  will  be  observed  that  the  question  in  the  foregoing  cases  is  quite  distinct  from  that 
which  arises  when  the  guardian  sues  upon  a  contract  made  by  him  in  his  own  name  as 
guardian.  "Certainly,  a  guardian  who  takes  a  note  payable  to  himself  and  describing 
himself  as  guardian,  is  a  trustee  of  an  express  trust  within  the  very  words  of  this  section" 
[providing  that  a  "trustee  of  an  express  trust "  shall  be  construed  to  include  a  person 
with  whom,  etc.]— /f?/"  Rodman,  J.,  in  Mebane  v.  Mehane  (1872),  66  N.  C.  334.  See  also 
Catron  v.  LaFayctte  County  (1891),  106  Mo.  659,667;  Barnwell  v.  Marion  (1S98),  54  S.  C. 
223, 227.  —Ed. 

1  The  statement  of  facts  is  abridged  from  an  omitted  portion  of  the  opinion. 


K):i;D,  GLAKDIAX,  :'.  LAXIC  HT  AL.  611 

docs  not  necessarily  tenuinalc  at  the  moment  the  ward  becomes  of 
legal  age,  especia]l\-  where  his  interests  demand  that  it  continue  and 
he  does  not  object.  The  guardian  should  be  given  reasonable  time  in 
which  to  make  an  accounting  and  close  his  official  labors.  The  divi- 
sion of  the  answer  under  consideration  did  not  .show  that  there  had 
been  an}-  accounting  by  the  plaintiff  for  the  share  of  his  ward  Lizzie 
in  the  indebtedness  in  controvensy,  nor  that  any  .steps  have  been 
taken  to  terminate  the  guardianship  of  her  estate.  The  defence  re- 
lied on  in  that  portion  of  the  answer  is  merely'  that  the  ward  has  ar- 
rived at  her  majority.  So  far  as  the  record  shows,  the  action  is 
brought  b}'  her  consent  and  for  her  interest. 

In  view  of  the  relation  in  which  the  plaintiff  has  stood  to  her  and 
her  property',  and  the  dut}'  which  devolved  upon  him  to  protect  the 
very  interests  in  controversy,  we  do  not  think  it  is  incumbent  on  him 
to  show  in  the  first  instance  that  his  right  to  protect  those  interests 
and  enforce  them  continues,  nor  that  the  fact  that  she  has  attained  her 
majority  is  alone  sufficient  ground  for  the  abatement  of  the  action  as 
to  her  share  in  the  estate.  The  plaintiff  has  been  entitled  to  repre- 
sent her  in  actions  in  court,  and  if  that  right  has  been  terminated  the 
fact  should  be  shown,  and  the  proper  person  made  a  party  to  the  ac- 
tion. Roop  V.  Clarke,  4  G.  Greene,  294.  Until  that  is  done,  it  will  be 
presumed  that  the  action  is  for  her  interest,  and  that  she  will  be 
bound  by  the  final  adjudication.' 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point.  Compare  Gard  v. 
Neff  {1SS4),  39  O.  S.  607,  jjiven  in  text;  anU,  p.  57S.  — Ed, 


G12  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

III.      PERSONS   EXPRESSLY   AUTHORIZED    BY  STATUTE   TO   SUE   IN 
THEIR   OWN   NAMES. 

\/  SWIFT  V.  ELLSWORTH. 

SuPRExME  Court  of  Indiana,  May  Term,  185S. 
[10  Ind.  205.] 

The  facts  appear  in  the  opinion. 

S.  A.  Huff,  Z.  Baird,  and  /.  M.  La  Rite,  for  the  appellants. 

R.  C.  Gregory,  H.  W.  Chase,  and  /.  A.  Wilstach,  for  the  appellee. 

Hanna,  J. — This  was  an  action  by  Ellsworth,  assignee  of  Rowe, 
against  Swift  and  Rowe,  on  a  promissory  note,  made  by  Swift  to 
Rowe,  and  to  foreclose  a  mortgage,  etc.,  for  $4,780. 

Rowe  filed  no  answer.  Swift  answered  in  four  paragraphs,  setting 
up,  I.  Matters  of  setoff  between  himself  and  Rowe,  and  also  certain 
counterclaims  for  damages  b}^  way  of  recoupment.  2.  Part  payment 
to  Rowe.  3.  That  Ellsworth  was  not  the  real  part}-  in  interest,  but 
that  the  note,  etc.,  was  the  exclusive  property  of  Rowe.    4.  As  follows  : 

"  That  said  note  was  assigned  by  the  defendant  Rowe  to  the  plaintiff,  by 
indorsement  in  blank,  as  alleged ;  that  it  was  so  assigned  and  delivered  to 
the  plaintiff  by  Rowe,  to  secure  to  said  plaintiff  $2,500  which  Rowe  owed 
plaintiff,  and  for  no  other  consideration  ;  that  after  said  assignment  and 
delivery,  the  defendant  Swift  paid  to  the  plaintiff  the  said  sum  of  $2,500 
in  full,  being  all  the  interest  of  the  said  Ellsworth  in  said  note,  and  that 
since  said  payment  the  said  plaintiff  has  not  acquired  any  interest  in  the 
residue  of  said  note ;  that  the  said  pa3'ment  is  credited  on  the  note,  and 
that  the  plaintiff  is  not  the  real  party  in  interest  in  this  suit,  but  that  the 
said  defendant  Rowe  is  the  exclusive  owner  of  said  note." 

The  appellees  insist  that,  even  if  this  fourth  paragraph  shows  facts 
sufficient  to  enable  the  Court  to  say  that  Ellsworth  was  not  the  real 
party  in  interest,  yet,  under  the  statute,  he  was,  as  the  holder  of  the 
note  by  assignment,  entitled  to  maintain  the  action  in  his  own  name. 
That  statute,  i  R.  S.  p.  378,  is  as  follows : 

Section  i.  "All  promissory  notes,  etc.,  shall  be  negotiable  by  indorse- 
ment thereon,  so  as  to  vest  the  property  thereof  in  each  indorser  success- 
ively." Section  2.  "  The  assignee  of  any  such  instrument  may,  in  his 
own  name,  recover  against  the  person  who  made  the  same." 

This  statute  makes  the  assignee,  for  the  purpose  of  suing,  the  legal 
holder  of  the  instrument,  unless  a  state  of  facts  may  be  shown  to  de- 
prive him  of  that  right,  under  sec.  3,  2  R.  S.  p.  2"],  which  is  as  follows  : 
♦'  Every  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest,  except  as  otherwise  provided  in  the  next  section."  The  pro- 
vision of  the  next  section  is  as  follows :  "An  executor,  administrator, 
a  trustee  of  an  express  trust,  or  a  person  expresslj-  authorized  by 


KING,  GUARDIAN,  :'.  CUTTS.  f)13 

statute,  may  sue,  without  joining  with  him  the  person  for  whose  bene- 
fit the  action  is  prosecuted." 

Is  the  assignee  of  a  promissory  note  who  ma}-  hold  it  as  such,  with- 
out any  real  interest,  one  of  that  class  of  persons  here  referred  to  as 
being  "  expressly  authorized  by  statute  "  to  sue  ?  or  does  the  provi- 
sion have  reference  to  another  class  of  persons,  such  as  the  guardian 
of  an  idiot,  etc.? 

We  are  of  opinion  that  the  clause  of  this  section  above  quoted, 
does  not  have  reference  to  the  rights  of  an  assignee  of  a  promissory 
note,  but  to  such  persons  as  may  be  authorized  to  sue  in  their  own 
names,  because  of  holding  some  official  place ;  as  the  president  of  a 
bank,  under  the  general  law  (r  R.  vS.  p.  157),  or  as  the  trustee  of  a 
civil  tov.'nship  {/li.  467),  etc. 

It  therefore  follows,  that  the  real  part}'  in  interest,  as  was  formerly 
the  rule  in  equity,  must  bring  the  action,  subject  to  the  provisions 
and  exceptions  of  the  statute,  and  that  if  any  other  than  those  thus 
authorized  should  bring  suit  as  plaintiff,  an  answer  showing  affirma- 
tively the  facts,  is  a  good  answer.  We  think  the  fourth  paragraph  of 
this  answer  was  sufiicient.     "S'an  Santvoord's  PI.  109,  421,  478.1 


KING,  GUARDIAN,  z'.  CUTTS. 

Supreme  Court  oe  Wisconsin,  June  Term,  1869. 

[24  Wis.  625.] 

The  defendant  appealed  from  a  judgment  rendered  against  him  in 
the  circuit  court,  on  appeal  from  a  justice  of  the  peace.  The  facts  are 
stated  in  the  opinion. 

C.  N.  Parsons,  for  appellant. 

Noggle  &  Castle,  for  respondent. 

Dixon,  C.  J. — It  is  unnecessary  to  inquire  whether  the  plaintiff  is  a 
trustee  of  an  express  trust,  authorized  to  sue  in  his  own  name  to  re- 
cover possession  of  the  real  estate  belonging  to  his  ward;  for  even 
though  he  were  such  trustee,  it  would  still  follow  that  this  action 
could  not  be  so  maintained. 

It  is  an  action  of  unlawful  detainer,  instituted  under  the  12th  sec- 
tion of  the  forcible  entry  and  unlawful  detainer  act  (R.  S.,  ch.  151),  to 
dispossess  the  defendant  as  a  tenant  holding  over  contrary  to  the 
terms  of  his  lease.  The  premises  are  the  property  of  the  ward,  and 
the  lease  was  executed  by  \\\\\\  nearly  a  year  before  the  plaintiff  was 
appointed  as  his  guardian.  It  is  not  pretended  that  the  lease  was  in 
any  respect  invalid  at  the  time  of  its  execution.  The  ward  was  then 
a  person  of  full  age,  and  competent  to  execute  it,  but  subsequently 

•  Part  of  the  opinion,  on  other  points,  is  oniitled.  Per  Curiam — The  judgment  is  re- 
versed with  costs.    Cause  remanded,  etc. 


614  IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

imbecility  has  rendered  it  proper  that  a  guardian  should  be  appointed 
for  him  in  accordance  with  the  provisions  of  the  statute  in  such  cases. 
The  plaintiff,  having  been  appointed  such  guardian,  made  demand 
in  writing  of  the  defendant,  that  he  deliver  possession,  and  then 
commenced  this  action  in  his  own  name  as  guardian.  It  is  clear  that 
the  action  in  this  respect  is  wholly  misconceived.  It  should  have 
been  brought  in  the  name  of  the  ward.  It  is  a  purely  statutory 
remedj',  given  only  to  the  lessor,  his  heirs,  executors,  administrators, 
or  assigns;  and  the  plaintiff  is  none  of  these.  It  could,  at  most,  only 
be  contended  that  he  was  an  assign ;  but  he  is  not  that,  because,  by 
virtue  of  his  appointment  as  guardian,  he  acquired  no  estate  what- 
ever in  the  lands.  They  remained  the  property  of  the  ward,  the  same 
as  before,  and  the  plaintiff  became  the  mere  bailiff  or  custodian,  acting 
under  the  direction  of  the  court.  This  principle  is  well  settled.^  The 
plaintiff  not  being,  therefore,  an  assign,  nor  belonging  to  any  of  the 
other  classes  of  persons  authorized  to  bring  the  suit,  and  so  not 
standing  in  the  relation  of  landlord  to  the  tenant  in  possession  (see 
Wintei'-field  v.  Stmtss,  24  Wis.  394),  the  action  can  not  be  maintained 
by  him;  and  that,  regardless  of  the  question  whether •  he  is  to  be 
deemed  a  trustee  of  an  express  trust,  so  that  he  might  have  sued  in 
some  other  form  of  action  to  recover  the  possession. 

It  follows  from  these  views,  that  the  judgment  of  the  circuit  court 
must  be  reversed,  and  the  cause  remanded  with  directions  to  enter 
judgment  in  favor  of  the  defendant,  and  against  the  plaintiff  for  costs 
of  suit. 

By  the  Court. — So  ordered. 


PETERvS  V.  FOSTER. 

Supreme  Court  of  New  York,  General  Term,  May,  1890. 

[56  Hun  607.] 

From  an  interlocutory  judgment  overruling  his  demurrer  to  the 
complaint,  the  defendant  appealed. 

Benjamin  B.  Foster,  for  the  appellant. 

Charles  F.  MacLean,  for  the  respondent. 

Barrett,  J. — The  Exchange  National  Bank,  of  Norfolk,  Virginia, 
was  organized  under  the  laws  of  the  United  States,  and  was  located 
in  the  State  of  Virginia.  It  was,  therefore,  a  foreign  corporation,  as 
defined  by  the  code  of  civil  procedure  (§  3343,  vSubd.  18).  The  question 
is,  whether  the  plaintiff,  as  receiver  of  this  foreign  corporation,  ap- 
pointed by  the  Comptroller  of  the  Currencj-,  can  maintain  an  action 
in  the  courts  of  this  state  to  recover  an  assessment  duly  levied  upon 
the  shareholders  of  the  bank. 

'  Citing,  Petrie  v.  Shoemaker,  24  Wend.  S5;  Lane  v.  Schermerhorn,  i  Hill,  97;  McKillip 
V.  McKillip,  8  B;nb.  552. 


GOULD  AND  OTHKKS,  COMMISSIONERS,  V.  GL.\SS.  015 

Two  points  are  presented  b}-  the  appellant :  Jirsi,  that  the  plaintiff 
is  to  be  treated  as  a  foreign  receiver,  and,  as  such,  denied  a  standing 
in  our  courts  ;  second,  that  he  is  not  the  real  party  in  interest.     .     .     > 

The  remaining  question  is  whether  the  plaintiff  is  the  proper  per- 
son to  sue.  This  question  has  been  settled  adversely  to  the  appellant. 
Stanton  v.  IVilkenson,  8  Benedict,  359;  Bank  v.  Kennedy,  17  Wall.  21 ; 
Kennedy  r.  Gibson,  8  Wall.  498  ;  Bank  of  Bethel  v.  The  Pahqiciogtce 
Bank,  14  Wall.  383 ;  Piatt  v.  Crazvford,  8  Abb.  N.  S.  308. 

Under  section  449  of  the  Code  a  person  expres.sly  authorized  by 
statute  to  sue  is  excepted  from  the  provision  that  the  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest.  Here  the  re- 
ceiver is  so  expressly  authorized.  See  the  cases  above  ;  see,  too,  Rev. 
Stats,  of  U.  S.  gg  5234,  5151  ;  also,  act  of  Congress  Feb.  14,  1880,  Chap. 
25,  §  I.  And  this  is  entirely  reasonable.  For  the  bank  is  not  the  real 
party  in  interest,  but  its  creditors  ;  and  whatever  the  receiver  collects 
he  must  pay  over  to  the  treasurer  of  the  United  States,  for  the  benefit 
of  tlie.se  creditors. 

The  interlocutor}-  judgment  appealed  from  should,  therefore,  be 
affirmed,  with  costs. 

Van  Brunt,  P.  J.,  and  Bartlett,  J.,  concurred. 

Inter loc7tt07'y  judgment  affirmed  with  costs. 


GOULD   AND  OTHERS,  COMMISSIONERS  OF  HIGHWAYS  OF 
THE  TOW^N  OF  LISBON,  v.  GLASS. 

Supreme  Court  of  New  York,  General  Term,  January  1,  1855. 

[19  Barb.  179.] 

This  was  an  appeal  from  the  St.  I^awrence  countj-  court. 
The  complaint  was  as  follows  : 

"  Calvin  H.  Gould,  John  Sheldon  and  John  McBride,  commissioners  of 
highways  of  the  town  of  Lisbon,  against  John  Glass. 

"  The  plaintiffs  above  named  complain  of  the  above  named  defendant 
and  say  that  on,  etc.,  he  wrongfully  obstructed  a  certain  highway  in  the 
town  of  Lisbon,  by,  etc.,  so  as  to  obstruct  and  prevent  the  use  of  the  same 
by  the  public." 

Also  for  a  further  cause  of  action,  the  plaintiffs  state  that  the  defend- 
ant did,  etc.,  setting  forth  another  like  obstruction.  Judgment  was 
demanded  for  a  penalt}'  of  $5  for  each  obstruction,  according  to  the 
provisions  of  the  statutes. 

»  On  the  first  point,  the  court  was  of  opinion  that  the  plaintiff  was  not  to  be  treated  as 
a  foreig^n  receiver,  in  the  strict  sense.  "Technically,  it  is  true,  he  is  the  receiver  of  a  for- 
eign corporation.  It  will  be  observed,  however,  that  he  is  not  a  receiver  appointed  by  the 
courts  of  a  foreign  county,  or  even  of  a  sister  state,  but  by  an  officer  of  the  United  Slates, 
under  authority  derived  from  national  legislation."' 


616  IX  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

The  answer  denied  the  complaint,  and  also  set  up  title  to  the  locus 
in  qjio  in  the  defendant,  and  denied  that  it  ever  was  a  highway. ^ 

The  jury  found  for  the  plaintiffs.  Upon  judgment  being  entered 
thereon,  the  defendant  appealed  to  this  court. 

T.  V.  Russell,  for  the  plaintiffs. 

Jlorris  &  Cooler,  for  the  defendant. 

By  the  Court,  James,  J. — The  penalty-  sought  to  be  recovered  by 
this  action  is  one  in  which  the  plaintiffs,  as  individuals,  have  no  in- 
terest ;  and,  therefore,  if  the  action  is  not  brought  in  their  official 
character,  it  can  not  be  sustained ;  and  this  question  must  be  deter- 
mined by  the  complaint,  which  also  includes  the  title  of  the  cause. 
The  statutes  provide  that  actions  may  be  brought  by  commissioners 
of  highways  in  the  name  of  their  office.  (2  R.  S.  473,  §g  92,  93.)  And 
the  supreme  court  has  held  that  such  actions  are  properly  brought  in 
the  name  of  the  individuals  with  the  addition  of  their  name  of  office.^ 
But  when  actions  are  thus  brought,  the  pleading  should,  b}'  proper 
averments,  show  that  the  claim  is  made  by  the  officer,  and  not  b}-  the 
individual. 

The  complaint  in  this  action,  tested  by  the  principles  laid  down  in 
Merrittv.  Seaman,  2  Selden,  168;  Ogdensburgh  Bayikv.  Vaii  Rensselaer, 
6  Hill,  240;  Delafield  v.  Ki7iney,  24  Wend.  345,  and  Hunt  v.  Van  Al- 
styne,  25  Id.  605,  and  numerous  other  cases  of  like  character,  is  an  ac- 
tion in  favor  of  the  plaintiffs  as  individuals,  and  not  one  "  in  their 
name  of  office."  The  affix  to  their  names  in  the  title  is  a  mere  de- 
scriptio  personae.  The  declaration  in  Merritt  v.  Seaman  was  almost 
identical  with  the  complaint  in  this.  It  was  "  Charles  H.  IVIerritt,  ex- 
ecutor, etc.,  of  John  Simpson,  etc.,  plaintiff,  etc."  In  deciding  that  case, 
the  court  of  appeals  says,  "  This  is  the  onh'  part  of  the  declaration 
that  contains  any  indication  that  the  suit  is  brought  by  the  plaintiff 
in  any  other  than  his  individual  character.  The  promises  are  all  laid 
to  the  plaintiff  individual!}',  and  no  mention  is  made  of  letters  testa- 
mentary, either  in  the  declaration  or  the  testimony.  This  mode  of 
describing  the  plaintiff  as  executor  is,  upon  all  the  authorities,  to  be 
regarded  as  merely  a  desanptio  personae,  in  no  respect  changing  the 
character  of  the  pleadings,  or  the  rights  of  the  parties  under  them." 
Justice  Cowen,  in  Ihmt  v.  Van  Alstyne,  25  Wend.  605,  said,  "The 
declaration  is  one  by  the  defendant  Hunt  in  his  own  right ;  calling 
himself  president  of  a  certain  company  is  a  mer&descriptio  personae." 
In  the  case  of  the  Ogdensburgh  Bank  z'.  I  'a7i  Rensselaer,  Justice 
Bronson  said,  "  This  is  an  action  against  Henry  Van  Rensselaer,  and 
the  words  which  follow  his  name,  '  president  of  the  vSt.  Lawrence 
Bank,'  can  only  be  regarded  as  a  descriptio  personae.'''  The  question 
has  been  decided  in  Delafield  v.  Kinney.     It  was  also  decided  at  the 

'  Part  of  the  statement  of  facts  is  omitted. 

2  Citing,  Supervisor  of  Gahvay  v.  Stimson,  4  Hill,  136.  Overseers  of  Pittstown  v.  Over- 
seers of  Plattsburgh,  iS  John.  407.     Todd  -v.  Birdsall,  i  Cowen,  260. 


IIKDGES  :■.  HAM.  (il7 

last  term,  on  the  argument  of  a  cause  \vhere  the  declaration  was 
framed  in  the  same  way  against  an  executor;  and  it  is  decided  in  all 
the  precedents  in  the  books. 

In  the  present  action,  the  title  is  the  only  part  of  the  complaint 
which  contains  any  intimation  that  tlie  suit  is  brought  by  the  plain 
tiffs  in  any  other  than  their  individual  character.  They  nowhere  aver 
that  they  are  commissioners  of  the  town  of  Lisbon,  or  complain  as 
such.  It  is  the  plaititifs  that  complain  of  the  defendant ;  it  is  the 
plaintiff's  that  demand  judgment ;  it  is  Galvin  II.  Gould,  John  Shel- 
don, and  John  IMcBride,  plaintiffs,  that  have  obtained  the  judgment, 
and  not  the  commissioners  of  highways,  nor  Gould,  Sheldon,  and  Mc- 
Bride,  as  commissioners  of  highways.  The  word  "  plaintiffs",  as  used 
in  the  complaint  and  in  the  judgment,  can  only  be  held  to  mean  the 
individuals,  and  not  the  officer. 

It  was  iirged"that  the  plaintiffs  intended  to  sue  in  their  official 
character,  as  was  evident  from  the  claim."  I  have  not  the  least  doubt 
in  that.  But  we  are  not  interpreting  a  contract,  and  searching  out 
the  meaning  of  parties  from  doubtful  and  equivocal  words.  It  is  the 
construction  of  a  pleading,  which  must  be  construed  according  to 
what  it  says,  and  not  what  the  pleader  intended.  (6  Hill,  240.)  The 
plaintiffs  should  have  averred  that  they  were  commissioners ;  that  as 
such  they  complained  of  the  defendant ;  and  the  judgment  should 
have  been  entered  in  their  favor  as  commissioners,  etc.  As  now  en- 
tered, the  record  would  be  no  bar  to  another  action  for  the  same  ob- 
structions, properly  brought  by  the  commissioners.     .     .     . 

The  judgmeni  of  the  county  coiirt  must  be  reversed. 


HEDGES  V.  DAM. 

Supreme  Court  op  California,  June  13,   1887. 

[72  Cal.  520.] 

The  action  was  brought  by  a  tax-payer  to  recover  the  amount  of 
certain  illegal  claims  alleged  to  have  been  unlawfully  allowed  and 
ordered  paid  by  three  of  the  defendants  as  members  of  the  board  of 
supen.'isors  of  Yuba  County,  out  of  the  county  treasury. 

Cross  &  Simmonds,  for  appellant. 

E.  A.  Davis  and  A.  L.  Hart,  for  respondents. 

P.^TTERson,  J.—  .  .  .  3.  No  reasons  are  set  forth  in  the 
complaint  why  this  action  is  prosecuted  by  and  in  the  name  of  the 
plaintiff,  a  tax-payer,  in.stead  of  by  the  district  attorney,  in  the  name 
of  and  in  behalf  of  the  county.  It  is  not  alleged  even  that  any  de- 
mand was  made  by  the  plaintiff",  either  for  the  money,  or  for  the  insti- 
tution of  an  action  for  its  recovery.     The  county  is  the  real  party  in 


618  IX  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

interest,  and  the  district  attorney  is  tlie  proper  person  to  prosecute 
actions  in  the  name  of  the  county  {Pol.  Code,  §  4256,  subd.  3;  County 
Govertunent  Act,  §  136).  If  it  be  admitted  that  a  tax-payer  has  the 
right,  even  in  the  absence  of  an  express  statutory  authority,  to  prose- 
cute actions  of  this  kind,  yet  we  think  facts  should  be  alleged  show- 
ing a  refusal  or  neglect  on  the  part  of  the  proper  officer  to  institute 
an  action.  Judgment  affirmed. 


ERVIX    ET   AL.  v.  THE   STATE   EX   REE.  WALLEY. 

Supreme  Court  of  Indiana,  Xovember  Term,  1897. 

[150  Ind.  332.] 

From  the  Delaware  Circuit  Court. 

/.  W.  Ryan,  IV.  A.  Thompson,  and  Jl'arner  &  Brady,  for  appellants. 

M.  E.  Forkner,  J.  G.  Leffler,  and  James  N.  Tempter  &  Son,  for 
appellee. 

?*IcC.VBE,  C.  J. — The  appellee  sued  the  appellants  to  recover  money 
alleged  to  have  been  lost  by  William  A.  Walley,  the  relator's  husband, 
to  the  appellees,  by  betting  on  a  game  called  faro,  under  §§  6676,  6678, 
Burns'  R.  S.  1894  {'0,  4951,  4953,  R.  S.  1881).  The  complaint  was  in 
five  paragraphs,  and  the  court  overruled  a  several  demurrer  by  the 
defendants  to  each  paragraph  for  want  of  sufficient  facts,  and  that  the 
plaintiff  had  no  capacity  to  sue. 

A  trial  of  the  issues  resulted  in  a  verdict  and  judgment  for 
$5,414.50  over  appellants'  several  and  joint  motions  for  a  new  trial. 
The  court  also  overruled  appellants'  motion  to  modify  the  judgment. 

The  errors  assigned  call  in  question  these  several  rulings,  and  also 
call  in  question  the  sufficiencj^  of  the  complaint.     .       .       .^ 

It  is  next  contended  that  the  demurrers  ought  to  have  been  sus- 
tained because  the  action  is  not  prosecuted  in  the  name  of  the  real 
party  in  interest,  namely,  Xellie  A.  Wallej-,  but  is  prosecuted  in  the 
name  of  the  state. 

It  is  conceded  that  the  statute  on  which  the  action  is  founded  au- 
thorizes the  prosecution  of  the  action  in  the  name  of  the  state  for  the 
benefit  of  the  wife  of  the  loser,  under  certain  circumstances,  but  it  is 
contended  that  such  statute  was  passed  prior  to  the  code,  and  that  the 
code  makes  a  different  provision  in  relation  thereto,  and  must  be 
deemed  the  last  expression  of  the  legislative  will,  and  controlling  in 
this  respect.  Conceding,  without  deciding,  that  such  was  the  order 
of  passage  of  the  two  statutes,  and  that  the  last  act  would  have  the 
effect  to  modify  the  first  in  so  far  as  inconsistent  therewith,  we  do  not 

1  The  omitted  portion  of  tlic  opinion  aflirmcd  the  constitutionality  of  the  statute  on 
which  the  action  was  based. 


ERVix  i:t  al.  :-.  the  state  ex  rel.  wallev.  ^'19 

think  that  there  was  any  snch  inconsistency.  vSection  251,  Burns'  R. 
S.  1894  (251  R.  S.  18S1),  provides  that:  "  Every  action  must  be  prose- 
cuted in  the  name  of  the  real  party  in  interest,  except  as  otherwise 
provided  in  the  next  section."  The  next  section  provides  that :  "  An 
executor,  administrator,  a  trustee  of  an  express  trust,  or  a  person  ex- 
pressly authorized  by  statute,  may  sue,  without  joining  with  him  the 
person  for  whose  benefit  the  action  is  pro.secuted."  The  State  is  au- 
thorized by  the  statute  in  que.stion  to  sue  for  the  benefit  of  another, 
and  the  State  is  within  the  meaning  of  the  last  section  of  the  code,  if 
the  word  "  person  "  as  used  therein  may  be  held  to  include  the  State. 

Among  the  rules  for  the  construction  of  the  code,  it  is  provided  in 
section  1309,  Burns'  R.  S.  1894,  (1285,  R.  S.  18S1),  that:  "The  word 
'  person '  extends  to  bodies  politic  and  corporate."  Webster  defines 
the  words  "  body  politic  "  to  be  "  the  collective  body  of  a  nation  or 
state  as  politically  organized,  or  as  exercising  political  functions;  also 
a  corporation." 

Therefore,  we  hold  that  the  code  does  not  require  the  action  to  be 
brought  in  the  name  of  the  real  part}-  in  interest,  where,  as  here,  a 
person,  the  State,  is  expressly  authorized  b}-  statute  to  sue  without 
joining  the  person  for  whose  benefit  the  action  is  prosecuted. ^ 

It  is  further  contended  that  the  State  alone  is  the  only  proper  party 
plaintiff,  where,  as  here,  the  action  is  brought  for  the  benefit  of  the 
wife  of  the  loser.  The  statute  quoted  requires  the  action  in  such 
cases  as  this  to  be  brought  in  the  name  of  the  State.  That  means 
that  the  State  must  be  the  plaintiff.  It  requires  no  relator.  Shane  z\ 
Francis,  30  Ind.  92.  But  the  action  here  is  brought  in  the  name  of 
the  State  as  plaintiff.  The  relator  is  not  a  party  plaintiff,  but  is  sim- 
ply a  relator.  If  she  becomes  a  party  plaintiff"  by  being  named  as  a 
relator,  it  would  make  the  complaint  bad  in  every  paragraph  for  want 
of  sufficient  facts.  This  is  so,  because  the  right  of  action  is  not  vested 
in  her  by  the  statute  ;  and  it  has  been  long  settled  in  this  court  that 
a  complaint  by  several  plaintiffs  which  fails  to  state  a  cause  of  action 
in  favor  of  any  one  or  more  of  them  is  bad  on  demurrer  for  want  of 
sufficient  facts  as  to  all  of  them  so  joined. - 

But  the  naming  of  the  relator  not  having  the  effect  of  making  her 
a  party  plaintiff,  the  State  is  the  sole  party  plaintiff,  and  the  action 
was  prosecuted  in  its  name  as  plaintiff.  Hence  that  part  of  the 
claim  naming  Nellie  A.  Walley  as  relator  is  mere  surplusage  and  does 
not  vitiate  the  complaint. 

It  is  also  contended  that  the  fourth  paragraph  of  the  complaint  is 

'Part  of  the  opinion,  on  other  points,  is  omitted. 

■  Citing,  Xave  v.  Hadley,  74  Ind.  155;  Schee  v.  Wiseman,  79  Ind.  3S9;  ^Etna  Insurance 
Co.  V.  Kittles,  Si  Ind.  96;  Headrick  r.  Brattain,  S3  Ind.  iSS;  Thomas  v.  Irwin,  90  Ind.  557; 
Field  v.  H()lzman,93  Ind.  205;  Jones  1'.  Card  well,  9S  Ind.  331;  Holzman  v.  Hibben,  100  Ind. 
338;  Brumfield  v.  Drook,  loi  Ind.  190;  Ohio,  etc.,  R.  W.  Co.  v.  Cosby,  107  Ind.  32:  Brown 
V.  Critchell,  no  Ind.  31;  Peters  v.  Guthrie,  119  Ind.  44;  Kelley  v.  Adams,  120  Ind.  340; 
Pfister  V.  Gerwi^,  122  Ind.  567;  Renihan  v.  Wright,  125  Ind.  536;  Lake  Erie,  etc.,  R.  R.  Co. 
■V.  Priest,  131   Ind.  413. 


620  IX    WHOSE    NAME    THE    ACTION    SHOULD    BE    BROUGHT. 

bad   on    demurrer   for   want   of   sufficient    facts,    because   it   alleges 

"  that  the  |6,ooo.oo  of  the  money  so  lost  by  the  said  William  A.  Walley 
was  then  and  there  the  personal  property  of  and  belonged  to  the  said 
Nellie  Walley,  .  .  .  the  same  being  at  the  several  times  it  was 
wagered,  lost,  and  paid,  as  aforesaid,  in  the  possession  of  the  said  William 
A.  Walley,  her  husband,  as  her  trustee." 

The  action  authorized  by  the  statute  under  consideration  is  one 
that  could  not  be  maintained  at  common  law.  Because  of  the  parties 
to  the  bet  being  in  pari  delicto,  the  common  law  w^ould  leave  them 
where  they  had  placed  themselves,  i  Nor  would  the  action  lie  at 
common  law  to  recover  the  money  in  the  name  of  the  State,  or  any- 
body else,  for  the  benefit  of  the  wife  or  children  of  the  loser,  nor  for 
the  benefit  of  the  common  schools.  In  other  words,  the  legislature 
in  passing  the  statute  intended  to  create  a  new  right  of  action  that 
had  no  existence  at  common  law,  and  such  a  right  of  action  as  could 
rest  alone  upon  the  statute.  The  statute,  nor  any  part  thereof,  can 
not  be  applied  to  aid  or  help  a  cause  of  action  the  right  to  maintain 
and  prosecute  which  existed  at  common  law  independent  of  and 
without  the  statute. 

If  the  money,  as  alleged  in  the  fourth  paragraph,  was  the  personal 
property  of  Nellie  A.  Walley,  and  her  husband  had  possession  of  it 
as  her  trustee,  he  had  no  right  to  gamble  it  away.  "  It  is  now  a 
universal  rule  that  all  those  who  take  under  the  trustee,  except  pur- 
chasers for  a  valuable  consideration  without  notice,  take  subject  to 
the  trust."  i  Perry  on  Trnsls,  section  346.  The  winner  of  her 
money  became  her  trustee  therefor,  and  liable  to  account  and  pay 
over  the  same  to  her.  2  Perry  on  Trusts,  section  828.  Having  re- 
ceived the  money  in  violation  of  law  and  without  any  consideration, 
he  became  a  trustee  de  son  tort,  and  liable  to  a  suit  by  the  cestzii  que 
trust  to  recover  the  money. ^ 

It  therefore  clearly  appears  that  the  statute  in  question  does  not 
provide  for  the  recovery  of  the  wife's  money  gambled  away  b}'  her 
husband,  either  in  the  name  of  the  State  as  plaintiff,  or  in  any 
other  name,  because  she  already  had  the  right  to  recover  it  in  her 
own  name.  Though  she  was  a  married  woman,  whose  husband  was 
still  living,  the  statute  empowered  her  to  sue  alone.  It  provides  that : 
"A  married  woman  may  sue  alone — First.  When  the  action  concerns 
her  separate  property."  Section  255,  Burns'  R.  S.  1894  (254  R.  S. 
1S81).  The  allegations  of  the  paragraph  show  that  the  money  was 
her  separate  property,  and  this  court  has  held  correctly  that  she  may 

1  Citing,  Woodcock  v.  McQueen,  ii  Ind.  14;    M'HaUon  v.  Bates,  4  Blackf.  63. 

-  Citing,  I  Perry  on  Trusts,  section  245,  and,  to  the  same  effect,  McFadden  v.  Wilson, 
96  Ind.  253;  Causidere  v.  Beers,  i  Abbott's  App.  Dec.  (N.  Y.),  333;  Mason  v.  Waite,  17 
Mass.  560;  Doyle  v.  Mclntyre,  71  Ga.  673;  Corner  v.  Pendleton,  8  Md.  337;  Burnham  v. 
Fisher,  25  Vt.  514;  Pierson  v.  Fuhrman,  1  Colo.  App.iS7,  27  Pac.  1015;  Conway  v.  Conway, 
24  N.  Y.  Supp.  261;  McAllister  v.  Oberne,  42  111.  App.  2S7. 


ERVix  ];t  al.  :•.  the  state  ex  REL.  WAELEV.  O'-'l 

sue  concerning  it  alone,  without  joining  her  husband.  Mills  r. 
Winter,  94  Ind.  329. 

Another  section  of  the  code  already  referred  to,  goes  further  than 
to  confer  upon  her  permissive  authority-  to  sue  in  her  own  name,  but 
imperatively  requires  as  we  have  seen,  that  "every  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  except  as  other- 
wise provided  in  the  next  section."  And  the  next  section,  as  already 
observed,  provides  that  "  a  person  expressly  authorized  by  statute, 
may  sue  without  joining  with  him  the  person  for  whose  benefit  the 
action  is  prosecuted."  Sections  251,  252,  Burns'  R.  S.  1S94,  (251,  252, 
R.  S.  1881.)  But  \v&  have  already  seen  that  the  statute  on  which  this 
action  is  founded  does  not  authorize  the  State  or  any  other  person  to 
sue  for  the  benefit  of  the  owner  of  money  gambled  away  bj-  the 
trustee  of  the  owner. 

But,  going  be3-ond  the  briefs  on  either  side,  it  may  be  said  that 
there  is  no  allegation  in  the  fourth  paragraph  that  Nellie  A.  Wallej^'s 
money  was  gambled  away  by  her  husband  and  trustee  without  her 
knowledge  and  consent,  and  hence  it  may  be  urged  that  as  there  is 
nothing  in  the  paragraph  negativing  such  knowledge,  consent,  or  di- 
rection, the  transaction  may  be  regarded  as  one  in  which  she  was /"ar- 
ticeps  crimims,  and  therefore  the  loser  within  the  meaning  of  the 
statute,  and  authorized  to  recover  b}'  action  founded  on  the  statute. 

This,  however,  would  make  the  paragraph  still  worse.  If  .she  par- 
ticipated in  the  illegal  transaction  and  thereby  became  the  loser,  and 
as  such  authorized  to  recover  her  money  by  action  founded  on  the 
statute,  she  must  sue  in  her  own  name,  just  as  her  husband  or  anj-- 
body  else  must,  when  suing  as  loser.  But  that  is  not  all.  She  must 
sue  within  six  months.  But  the  paragraph  expressh^  states  that  more 
than  six  months  had  elapsed  when  the  action  was  brought.  So  it 
will  not  aid  the  paragraph  to  indulge  the  presumption  that  Mrs.  Wal- 
ley's  money  was  gambled  away  with  her  knowledge,  consent,  and  di- 
rection, in  the  absence  of  averments  to  the  contrary.  The  presump- 
tion is  to  the  contrary  and  in  favor  of  honest}'  and  fair  dealing,  inno- 
cence and  against  fraud.' 

Hence  we  are  authorized  to  presume  that  her  mone}-,  alleged  to 
have  been  gambled  awaj^  b}-  her  husband,  was  so  gambled  awaj-  with- 
out her  knowledge,  consent,  or  connivance,  and  hence  a  common  law 
right  to  recover  it  back  on  her  behalf  arose;  and  the  code  authorized 
her  to  invoke  that  right  of  action  in  her  own  name,  and  prevents  the 
action  from  being  brought  in  any  other  name. 

Therefore,  the  case  made  by  the  fourth  paragraph  of  the  complaint 
falls  squarely  within  the  first  section  above  referred  to  requiring  that 
every  action  must  be  prosecuted  in  the  name  of  the  real  party  in  in- 
terest.    That  party  was  Nellie  A.  Walley  and  not  the  State  of  Indiana. 

»  Citings  1  Rice  Ev.  pp.  8S,  89  and  96;  Louisville,  etc.,  R.  W.  Co.  v.  Thompson.  107  Ind. 
442;  Hunt  V.  Elliott,  So  Ind.  245,  41  Am.  Rep.  794. 


622  IN  WHOSE  NAME  THE  ACTION  SHOULD   BE  BROUGHT. 

Where  the  facts  stated  in  the  complaint  show  that  the  plaintiff  is 
not  the  real  party  in  interest,  and  there  is  no  statute  expressly  autho- 
rizing the  plaintiff  to  sue  without  joining  with  him  the  person  for 
whose  benefit  the  action  is  prosecuted,  as  is  the  case  here,  such  com- 
plaint is  bad  on  demurrer  for  want  of  sufiicient  facts  to  constitute  a 
cause  of  action. ^ 

It  follows  that  the  fourth  paragraph  of  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,  because  the  State,  the 
sole  plaintiff,  has  no  right  to  maintain  the  action  under  the  facts 
stated  therein. 

It  is,  however,  contended  by  the  learned  counsel  for  the  appellee 
that  the  error,  if  error  there  was,  in  overruling  the  demurrer  to  the 
fourth  paragraph  was  harmless,  and  no  cause  for  reversal.  It  is  true, 
if  it  affirmatively  appeared  that  the  verdict  and  judgment  rested  on 
the  other,  or  an}-  of  the  other  j^aragraphs,  then  the  error  of  overruling 
the  demurrer  to  the  fourth  paragraph  would  be  a  harmless  error.  But 
the  learned  counsel  for  the  appellee  broadly  concede,  that  "  it  affirma- 
tively appears  that  the  judgment  rendered  was  rendered  on  all  the 
paragraphs  of  the  complaint,"  referring  to  the  answer  to  interroga- 
tory 48.  Another  thing  appears  in  the  record,  that  would  seem  to  in- 
dicate that  the  judgment  rests  on  the  fourth  paragraph,  and  that  is, 
instead  of  being  rendered  in  favor  of  the  j^laintiff,  the  State  of  Indi- 
ana, for  the  benefit  of  Nellie  A.  Walley,  it  is  rendered  in  favor  of 
Nellie  A.  Walley  alone.  But  it  is  enough  to  make  the  error  harmful, 
and  cause  for  reversal,  that  the  record  fails  to  show  affirmatively  that 
the  verdict  and  judgment  rest  exclusively  on  other  paragraphs  than 
the  fourth.  Rozve  v.  Pcabody,  102  Ind.  198;  Elliott's  App.  Proc,  sec- 
tion 666,  and  cases  there  cited. 

The  learned  counsel,  however,  refer  to  the  code  providing  that : 
"  No  objection  taken  b}^  demurrer,  and  overruled,  shall  be  sufficient  to 
reverse  the  judgment,  if  it  appear  from  the  whole  record  that  the 
merits  of  the  cause  have  been  fairly  determined."  Section  348, 
Burns'  R.  S.  1894  (345  R.  S.  1881).  And  they  refer  also  to  a  decision 
of  the  Appellate  Court  applying  that  section  of  the  code.  Lake  Shore, 
etc.,  R.  W.  Co.  V.  K?ci-tz,  10  Ind.  App.  60.  But  they  could  have  found 
several  cases  in  this  court  where  that  provision  of  the  code  had  been 
applied,  Baker  v.  Pyatt,  108  Ind.  61 ;  Miller  v.  Bottenbiirg,  144  Ind. 
312.  But  those  cases  show  that  said  section  of  the  code  had  no  appli- 
cation where  the  record  fails  to  show  that  the  ruling  on  the  demurrer 
was  harmless.  As  was  said  in  Chapman  v.  Jones,  149  Ind,  434,  "a 
cause  can  have  no  merits  where  there  is  no  complaint,  or  where  the 
complaint,  as  here,  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action."     . 

'  Cj7/«.^,  Rawlings  v.  Fuller,  31  Ind.  255;  Smock  v.  Brnsh,62  Ind.  156;  Shoemaker  7'. 
Board,  etc.,  36  Ind.  175;  Board,  etc.,  v.  Jameson,  86  Ind.  154;  Pixley  -y.  Van  Nostern,  lOO- 
Ind.  34. 


STATIC    OF    XU15RASKA    :'.  IlAVDi;x.  (j2:> 

For  the  error  in  overruling  the  demurrer  to  the  fourth  paragraph 
of  the  complaint,  the  judgment  is  reversed,  and  the  cause  remanded, 
with  instructions  to  the  trial  court  to  sustain  the  demurrer  thereto.* 


STATE  OF  NEBRASKA  v.  HAYDEN. 

I'xiTED  States  Circuit  Court,  D.  Nebraska,  August  io,  1898. 

[89  Fed.  Rep.  46.] 

^Motion  b}'  defendant  to  strike  the  amended  petition  from  the  files. 

C.  J.  Smyth,  Atty.  Gen.,  and  Ed.  P.  Smith,  Dep.  Atty.  Gen.,  for  the 
State  of  Nebraska. 

Cobb  &  Harvey  and  G.  M.  Lambertson,  for  defendant. 

INIuxGER,  District  Judge. — This  action  was  originally  begun  by 
Joseph  S.  Bartley,  as  treasurer  of  the  State  of  Nebraska,  against  the 
defendant,  as  receiver  of  the  Capital  National  Bank,  to  recover  the 
sum  of  $236,361.83,  with  interest  thereon. 

The  petition,  among  other  things,  alleged  the  election  and  qualifi- 
cation of  the  plaintiff  as  state  treasurer  of  the  State  of  Nebraska, 
and  of  John  E.  Hill,  the  predecessor  of  plaintiff  in  ofiice,  as  such 
state  treasurer ;  that  said  Hill  during  his  term  of  ofiice  deposited  with 
the  Capital  National  Bank  divers  sums  of  monej'  belonging  to  the 
State  of  Nebraska,  and  took  certificates  of  deposit  therefor;  that  on 
the  expiration  of  his  term  of  office  said  Hill  turned  over  to  plaintiff, 
as  his  sviccessor,  said  certificates  of  deposit  as  part  of  the  funds  be- 
longing to  said  state;  that  said  certificates  were  accepted  by  plaintiff, 
and  by  him,  on  or  about  the  i6th  day  of  January,  1893,  deposited  in 
the  Capital  National  Bank,  and  the  amount  thereof  was  credited  b}- 
said  bank  to  the  account  of  plaintiff  as  state  treasurer;  that  on  or 
about  the  14th  day  of  January,  1893,  the  said  Capital  National  Bank 
executed  a  bond  unto  the  State  of  Nebraska  in  the  penal  si:m  of 
$700,000,  with  sureties,  in  pursuance  of  the  provisions  of  an  act  of  the 
legislature  of  the  State  of  Nebraska  approved  April  8,  1891,  entitled, 
"  an  act  to  provide  for  the  depositing  of  state  and  county  funds  in 
banks";  that  on  or  about  said  14th  day  of  January,  1893,  said  bond 
and  the  sureties  thereon,  were  duly  approved  by  the  governor,  the 
secretarj^  of  state,  and  the  attorney  general;  that  on  or  about  the  20th 
day  of  Januar}',  1893,  said  bank  suspended  business  and  the  defend- 
ant was  appointed  receiver  thereof,  by  the  comptroller  of  the  cur- 
rency; that  there  was,  at  the  time  of  the  suspension  of  said  bank,  to 
the  credit  of  plaintiff,  as  such  treasurer,  the  sum  of  $236,361.83,  a  por- 
tion of  the  deposit  so  as  aforesaid  made;  that  plaintiff  presented  to 
the  defendant,  as  receiver,  a  duly  verified  claim  for  said  funds,  which 

'  Rehearing  denied  April  21,  1S9S. 


624  IN  WHOSE  XAME  THi:  ACTION    SHOULD  BE  BROUGHT. 

was  disallowed.  Subsequent!}'  plaintiff  filed  an  amended  petition, 
stating  substantially  the  same  facts  as  in  the  original  petition,  except 
that  said  amended  petition  did  not  show  that  said  bank  gave  the  bond 
or  otherwise  qualified  as  a  state  depository  under  the  provisions  of 
said  legislative  enactment. 

A  demurrer  was  filed  to  said  amended  petition,  on  the  ground  that 
the  court  did  not  have  jurisdiction  of  the  action,  and  that  the  petition 
did  not  state  a  cause  of  action.  The  demurrer  was  heard  b}-  Judge 
Shiras,  and  overruled. i 

After  the  expiration  of  the  term  of  office  of  plaintiff",  Joseph  S. 
Bartley,  the  action  was  revived  in  the  name  of  John  B.  Meserve,  the 
then  state  treasurer.  Thereupon  Meserve  filed  an  amended  petition, 
stating  substantially  the  same  facts  as  in  the  original  petition,  except 
as  to  the  deposit  in  said  bank  of  said  certificates  by  said  Bartle\'.  In 
the  amended  petition  filed  by  the  said  Meserve,  it  is  stated  that  on  or 
about  the  i6tli  day  of  Januarj-,  1S93,  the  said  Bartley,  as  state  treas- 
urer, presented  said  certificates  of  deposit  to  the  bank  for  paj-ment, 
that  the  same  were  paid,  and  that  the  money  received  in  payment  of 
said  certificates  was  deposited  b}'  Bartle}'  in  the  bask  to  his  account 
as  state  treasurer. 

To  this  petition  defendant  demurred,  stating  as  grounds  thereof, 
that  the  court  had  no  jurisdiction ;  that  the  plaintiff  had  not  legal 
capacity  to  sue;  that  said  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  The  demurrer  was  sustained  for  the 
reason  that  the  plaintiff  did  not  have  legal  capacity  to  sue;  that  the 
action  should  have  been  brought  in  the  name  of  the  state  of  Ne- 
braska, as  plaintiff";  and,  on  motion,  the  state  was  substituted  as 
plaintiff.  Thereupon  the  state  of  Nebraska  filed  its  amended  petition, 
stating  the  facts  substantiall}-  as  they  were  alleged  in  the  petition 
filed  by  Meserve  as  treasurer. 

The  defendant  now  moves  the  court  to  strike  the  amended  petition 
of  the  state  from  the  files  for  the  following  reasons :  (i)  There  is  an 
improper  substitution  of  parties  plaintiff  by  attempting  to  substitute 
the  state  of  Nebraska  as  plaintiff  in  the  place  of  J.  B.  Meserve,  state 
treasurer.  (2)  There  is  an  attempt  in  said  amended  petition  to  sub- 
stitute the  cause  of  action  of  the  plaintiff  from  one  depending  upon  a 
statute  created  for  the  purpose  of  recovering  public  mone}'  deposited 
without  authority  of  law  and  substitute  a  cause  of  action  depending 
upon  a  vStatute  created  for  the  purpose  of  permitting  the  recovery  of 
money  deposited  under  contract.  (3)  The  said  amended  petition  at- 
tempts to  change  the  cause  of  action  from  an  action  which  is  ex  delicto 
to  an  action  which  is  ex  contractu.  (4)  The  said  amended  petition  is 
an  attempt  to  shift  the  action  by  amendment  from  a  cause  of  action 
which  is  barred  by  the  vStatute  of  limitations  to  a  cause  of  action 
which  is  not  barred  b}-  the  statute  of  limitations.     (5)  Because  said 

'  Iti  Earthy,  Treasurer,  v.  Ilayden  (iS/)),  74  Fed.  Kep.  913. 


vSTATK    OF    Xr;nR.\SKA    C.  HAYDEN.  •         62') 

amended  petition  is  a  complete  departure  from  the  original  action, 
and,  in  effect,  the  commencement  of  a  new  suit,  with  different  parties 
and  different  cause  of  action,  brought  under  different  rights  of  action. 

At  the  hearing  on  the  demurrer  to  the  petition  of  Treasurer  Re- 
serve, it  was  argued  on  the  part  of  defendant  that  the  action  should 
have  been  brought  in  the  name  of  the  state,  rather  than  that  of  the 
treasurer;  that  the  provisions  of  the  legislative  enactment  of  1879 
(Comp.  St.  1897,  p.  116,  §  655)  authorizing  suits  to  recover  public 
funds  in  the  name  of  the  treasurer  were  enacted  by  reason  of  the 
holding  of  the  court  in  State  v.  Keini,  8  Neb.  63;  that  the  unauthor- 
ized deposit  of  public  funds  by  the  treasurer  did  not  create  the  rela- 
tion of  debtor  and  creditor  between  the  bank  and  the  state;  that  since 
the  depository  act  of  1891  (Comp.  St.  1897,  p.  1056,  §§  50S8-5090)  the 
deposit  of  public  funds  under  the  provisions  of  that  act  creates  the 
relation  of  debtor  and  creditor  between  the  bank  and  the  state,  and 
relieves  the  treasurer  from  liability  for  a  loss  of  the  funds,  so  that  the 
provision  of  the  code  requiring  every  action  to  be  prosecuted  in  the 
name  of  the  real  party  in  interest  governs;  that  the  action  could  only 
be  brought  in  the  name  of  the  treasurer  when  the  deposit  was  made 
in  violation  of  the  provisions  of  the  depository  statute  and  not  in  a 
designated  depository. 

This  view  of  the  law  was  accepted  by  the  court,  and  the  demurrer 
sustained,  but  leave  was  given  to  amend  by  substituting  the  state  of 
Nebraska  as  plaintiff  in  the  place  of  the  treasurer.  The  motion  to 
strike  the  petition  of  the  state  challenges  the  correctness  of  this 
ruling  of  the  court.  If  the  substitution  of  the  state  as  plaintiff  in- 
stead of  the  treasurer  was  a  change  of  the  cause  of  action,  then  such 
substitution  should  have  not  been  permitted  as  an  amendment. 

Wood  V.  Circuit  Judge,  84  Mich.  521,  47  N.  W.  1103,  was  a  case 
where  a  husband  died  intestate,  leaving  a  benefit  certificate  pa3-able 
to  his  wife;  but  she  had  died  the  previous  da3%  bequeathing  her 
property  to  him.  Afterwards  her  administrator  with  the  will  annexed 
sued  on  the  certificate.  Whereupon  the  husband's  heirs  applied  for 
an  order  substituting  them  as  parties  plaintiff,  which  w^as  refused  b}- 
the  trial  court.  The  supreme  court  held  that,  as  the  suit  of  the  ad- 
ministrator was  for  the  benefit  of  the  husband's  heirs,  the  substitu- 
tion would  not  introduce  a  new  cause  of  action,  and  that  the  order 
should  have  been  granted.  The  court,  in  the  opinion,  say :  "  Clearh", 
in  this  case,  the  money  due  upon  this  insurance  certificate  is  paj-able 
to  the  heirs  of  Frank  L.  Silver,  and  it  would  be  a  denial  of  justice  not 
to  permit  this  amendment.  .  .  .  If  the  real  partj'  remain  the 
same,  and  the  change  is  of  the  nominal  parties  only,  the  amendment 
is  permissible.  .  .  .  The  amendment  is  in  the  furtherance  of  jus- 
tice, and  the  insurance  compan}*  can  not  be  surprised  by  it;  neither 
will  the}'  be  deprived  of  an}-  substantial  or  essential  rights  in  the 
premises." 

Lake  Erie  &  W.  R.  Co.  :•.  Tozi'ii  of  Boszccll  [137  Ind.  336],  36  N.  E. 


626         .        IN  WHOSE  NAME  THE  ACTION  SHOULD  BE  BROUGHT. 

1 103,  was  a  suit  brought  by  the  trustees  of  the  town  of  Boswell  to 
enjoin  the  appellants  from  interfering  with  the  free  use  of  a  public 
street  in  the  town.  On  demurrer  to  complaint  the  court  permitted  an 
amendment  by  substituting  the  town  of  Boswell  as  plaintiff  instead 
of  the  trustees  of  the  town.  The  court  said  :  "  Whatever  informality 
there  may  have  been  in  the  action  of  the  court,  we  think  the  proper 
result  was  arrived  at.  The  same  end  would  finally  have  been  attained 
if  the  suit  were  dismissed,  and  a  new  suit  brought  in  the  name  of  the 
•Droper  party.  But  we  are  of  the  opinion,  as  stated  in  Burk  v.  Andis, 
98  Ind.  59,  that  a  plaintiff  in  such  a  case  ought  not  to  be  compelled 
to  dismiss  his  suit,  and  bring  a  new  one,  when  a  simple  amendment 
to  the  complaint  would  save  both  delay  and  additional  costs." 

Weils  V.  Stomdock,  59  Iowa,  376,  13  N.  W.  339,  was  an  action 
brought  in  the  name  of  Washington  township  on  a  super^-isor's  bond. 
A  demurrer  to  the  petition  was  sustained  on  the  ground  that  plaintiff 
had  no  legal  capacity  to  sue;  whereupon  an  amended  petition  was 
filed,  making  the  clerk  of  the  township  plaintiff.  This  amendment 
was  sustained.  Seevers,  C.  J.,  rendering  the  opinion  of  the  court, 
said:  "  We  are  asked  whether  the  plaintiff,  having  commenced  the 
suit  in  the  name  of  the  township,  could  amend  the  petition,  making 
the  clerk  plaintiff.  In  Township  of  West  Bend  v.  Ihinch,  52  Iowa, 
132,  2  N.  W.  1047,  it  was  held  a  township  did  not  have  legal  capacity 
to  sue.  This  being  so,  it  is  claimed  that  there  was  no  plaintiff 
named  in  the  original  petition,  and,  therefore,  none  could  be  substi- 
tuted; that  an  amended  petition  could  not  be  filed,  because  there  was 
nothing  to  amend.  But  we  think,  when  there  is  an  appearance  to 
the  action,  and  the  defendant  tests  the  right  of  the  named  plaintiff  to 
maintain  the  action  b\^  a  demurrer,  and  the  latter  is  sustained,  the 
name  of  the  proper  parties  plaintiff  may  be  substituted  in  the  action 
by  an  amended  petition,  subject,  of  course,  to  an  equitable  apportion- 
ment of  the  costs  and  the  right  of  the  defendants  to  a  continuance  if 
taken  by  surprise.  If  this  is  not  the  rule,  the  action  must  abate,  and 
another  be  brought.  This,  under  the  statute,  should  not  be  the  rule 
unless  substantial  justice  so  demands.  The  statute,  in  terms,  provides 
that  the  court,  in  furtherance  of  justice,  may  permit  a  party  to  amend 
any  pleading  '  hy  adding  or  striking  out  the  name  of  a  party,  or  by 
in.serting  other  allegations  material  to  the  case,  or,  when  the  amend- 
ment does  not  change  substantiall}-  the  claim  or  defence,  by  conform- 
ing the  pleadings  or  proceedings  to  the  facts  proved.'  The  defendants 
could  make  their  defence  in  this  action  as  well  as  in  the  new  one,  and 
they  could  not  have  been  prejudicially  affected  by  the  amendment, 
and  the  right  to  make  it  we  think  existed." 

To  the  same  effect  are  Wilson  v.  Weleh,  157  ]Mass.  77,  31  N.  E.  712; 
Buckland  v.  Green,  133  Mass.  421;  McCall  v.  Lee,  120  111.  261,  11  N. 
E.  522. 

In  I  Enc.  PI.  &  Prac.  p.  538,  it  is  stated  that  the  name  of  one  for 
whose  use  the  action   is  brought  may  be  .sub.'^tituted   for  that  of  the 


vSTATH  OK    NEBRASKA    T.  IIAYDKX.  G27 

nominal  plainlilT,  where  the  legal  right  of  action  is  shown  to  be  in  the 
former,  citing  many  cases. 

Section  144  of  the  Nebraska  Code  (Conip.  St.  1897,  p.  1187), 
relating  to  amendments  of  pleadings,  is  in  nearly  the  identical 
language  of  the  Iowa  statute  above  quoted  by  the  court,  and  in  this 
case  the  cause  of  action  as  stated  in  the  amended  petition  filed  in  the 
name  of  the  state  is  identical  with  the  cause  of  action  stated  in  the 
petition  by  Treasurer  Meserve.  The  action,  as  brought  originally  in 
the  name  of  the  treasurer,  was  to  recover  judgment  for  and  on  be- 
half of  the  state.  The  proofs  in  both  cases  would  necessarily  be  the 
same.  No  other  or  different  defence  to  the  merits  could  be  made  in 
the  one  case  which  was  not  equally  available  in  the  other.  I  do  not 
think  the  decisions  of  the  supreme  court  of  this  state  are  in  conflict 
with  the  rule  stated  in  the  foregoing  cases. 

Bank  V.  Ketchain^  46  Neb.  568,  65  N.  W.  201,  and  Flanders  v.  Lyon, 
51  Neb.  102,  70  N.  \V.  524,  were  both  cases  in  replevin,  in  which  it 
was  held  that,  after  the  property  had  been  taken  under  the  writ  from 
the  defendant,  and  delivered  to  the  plaintiff,  neither  the  affidavit  in 
replevin  nor  the  petition  could  be  amended,  against  the  objection  of 
defendant,  by  substituting  a  stranger  as  plaintiff".  These  cases  con- 
tained nothing  in  conflict  with  the  doctrine  before  stated.  It  may 
well  be  said  that  w-hen  a  party  obtains  possession  of  property  under  a 
writ  of  replevin  he  can  not  be  permitted  to  escape  a  judgment  for  a 
return  of  the  property,  or  its  value  in  money,  by  having  a  stranger 
substituted  in  his  stead, — one  perhaps  irresponsible. 

In  Burlington  Relief  Dept.  v.  Moore  [52  Neb.  719],  73  N.  W.  15,  an 
action  brought  by  the  plaintiff"  as  administratrix,  an  amendment  per- 
mitting a  recovery  in  her  own  individual  right  was  sustained.^ 

The  motion  is  overruled:- 

1  See  also  Bigelozo  v.  Draper  (iSg6),  6  N.  D.  152,  157:  Action  to  condemn  property  for 
railway  purposes,  brought  in  the  name  of  the  receivers  of  the  railway  company.  Held, 
that  the  action  should  have  been  brought  in  the  name  of  the  company,  but  that  it  was  not 
error  for  the  court,  after  verdict  fixing  the  compensation  for  the  property  taken,  to  amend 
by  inserting  the  name  of  the  corporation. 

The  court,  in  Nebraska  -v.  Haj/den,  ruled  against  the  defendant  also  on  the  second,  third 
and  fourth  grounds  of  the  motion,  holding  that  they  were  "based  on  the  erroneous  suppo- 
sition that  by  the  original  petition  it  was  sought  to  recover  for  the  deposits  of  the  public 
funds  made  by  Treasurer  Hill  during  his  term  of  office,  before  the  depository  law  went 
into  effect,  while  the  amended  petition,  now  under  consideration,  is  a  claim  for  deposits 
made  by  Treasurer  Hartley  under  the  provisions  of  the  depository  law.  The  two  peti- 
tions do  not  state  the  cause  of  action  in  identical  language,  yet  they  are  substantially 
alike  in  the  statement  of  the  cause  of  action.  Both  are  based  on  the  deposits  made  by 
Bartley  after  thu  depository  law  had  gone  into  effect,  and  after  the  bank  had  become  a 
designated  state  depository.  It  is  true  that  in  the  original  petition  the  allegation  is  that 
Bartley  deposited  in  the  bank  certificates  of  deposits  received  from  Hill,  and  that  the  bank 
gave  him  credit  therefor  to  his  account  as  treasurer,  while  in  the  amended  petition,  now 
under  consideration,  the  allegation  is  that  Bartlev  presented  the  certificates  to  the  bank 
for  payment,  received  payment  thereof,  and  deposited  the  proceeds  in  bank.  The  legal 
effect  was  the  same.  It  is  only  a  different  method  of  stating  the  same  cause  of  action. 
AlUhone  v.  Ames  [9  S.  D.  74],  6S  N.  W.  165;  Post,  J.,  in  State  v.  Hill,  47  Neb.  537,  66  N.  W. 
541;    State  V.  McFetridge,  S4  Wis.  473,  54  N.  W.  i,  99S." 

'  See  also  Commissioners  v.  Candler  (1S9S),  123  N.  C.  6S2.  And  compare  Ditbbers  v.  Gov.x 
OS75),  51  Cal.  IS5;  Hallett  v.  Lamm  (1S97), Idaho, ;    51   P.  loS.  —Ed. 


GENERAL  INDEX. 


[lu  this  index  tlie  word  complaint  stands  for  either  "complaint"  or  "petition;" 
the  word  demurra-  denotes  a  demurrer  on  the  ground  that  the  pleading  demurred  to 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action  or  a  defence.] 

(References  are  to  pages.) 
Abatement 

instance  of  plea   in.   under  the   code, 256 

Account 

actions   on,    instances,    41,    43,    55,   447 

Accounting 

granted  in  action  intended  by  pleader  as  an  action  on  an  ac- 
count   stated,    when     47 

Account  stated 

action    on,     42 

necessary  allegations, 40 

Actions 

tlie  formulary  system  of,  at  common  law, 9,  10.  14 

one  form  for,  under  the  codes 5,   13.   14 

distinct  proceedings  for  law  and  equity  in  Kentucky,  Iowa, 

Arkansas,   and   Oregon, 0,    7,    8 

departure   from   the   principle   of,   in   the   Special   Proceeding 

[78,  83,  84,  note 

detinition  of 78,  79 

See  also  Civil  A.ction,  Special  Proceeding. 

Administrator 

See  Executor  or  Administrator. 

Adverse  possession 

in  whose  name  the  action  should  be  brought.,  in  case  of  grant  of 

land  held   adversely,    189,    191 

Agent 

may  sue  in  his  own  name,  when 198,  201,  227,  230,  487 

may  not  sue  in  his  own  name,  when,  .  196.  228,  484,  500,  501,  note,  582 

Aider 

of  defect  by  pleading  over,  instances.   .  .45.  114.  141  note,  413.  439,  170 

629 


630  GENERAI.   INDEX. 

(References  are  to  pages.) 

Allegations 

may  be  stricken  out  on  motion,  when 20,  2.3,  111 

isolated  allegations  may  be  disregarded,  when Ill,   142,  146 

the  overshadowing  allegations  to  be  given   effect, 143 

a   single   allegation,    decisive   of   the   character    of    a    pleading, 

when, 126 

Alternative  causes 

in  one  count,   bad   pleading,    121 

Alternative  relief 

instances  of  under  the  code,    87,   181 

Amendment 

before   trial 

allowed,    15,  70 

not  allowed, 126 

effected  by  answer,    209 

after  trial,    Ill,    compare  134 

effect  of  failure  to  amend  in  case  of  variance, 134 

distinguished  from  "substitvitiori"  of  a  cause  of  action, 127 

Answer 

when   met   by   demurrer,    deemed   to   proceed    upon    a    definite 

theory,    143 

See  Theory  of  Action. 

to    cross-complaint,    instance,    64 

seitting   up    that   plaintiff   is   not   the   real    party    in    interest 

227,  231,  435,  441,  456,  612 
and   cross-complaint,    instance.    64 

Appeal 

distinguished   from   proceedings   in   error, 66,  79 

right  to  appeal  depends,  in  some  states,  on  absence  of  right  to 

jury  trial  in  a  civil  action, 66 

effect  when  statute  extends  the  right  of  jury  trial  to  causes  of 

equitable   cognizance,    66 

right  to,  is  a  question  of  jurisdiction, 70,  79 

does  not  lie  in  a  special  proceeding,  when, 79 

as  in  special  statutory  partition, 79 

but  lies  in  equitable  partition, 80 

Arizona 

when  code  pleading  enacted   in, 4 

statutes,   7,  191 

Arkansas 

when   code   pleading   enacted    in,    4 

statutes,    8,    79,  192 

cases,    0.? 

nature  of  the  distinction  in  its  code  between  ])roceedings  at  law 

and  proceedings  in  equity, 65 


GENERAL  INDEX.  631 

(References  are  to  pages.) 

Assignability 

how   affected  by   survivability 417,   420,   42;{ 

distinguished  from   negotiability, 448 

Assignee 

right  of  to  sue  in  his  own  name, 

doctrine  of  American  code  pleading  contrasted  with  that 

of  common  law  and  equity  pleading, 376,   385 

the  English  code  herein, 377,   note 

whether  assignor  may  sue  for  use  of  assignee, 432 

procedural  distinction  between  legal  and  equitable  holder,  im- 
portant   when,     449 

assignee!  of  part  orf  a  demand: 

when  all  parties  before  the  coairt, 153 

when  some  parties  not  before  the  court,  but  defect  waived 

through  course  of  pleading, 45 

Assignment  of  chose  in  action 

what  choses  in  action  may  be  assigned : 

rights  in  contract  held  assignable 378,  383,  388,  392 

not  dependent  on  special  statute  expressly  permitting 

assignment,    447 

rights  in  contract  held  not  assignable, 385,   390 

rights  in  tort  held  not  assignable, 399,   407 

in  case  of  a  possible  election  between  tort  and  con- 
tract,         412 

rights  in  tort  held  assignable, 402,  404,  note 

effect  of  survivability  upon  assignability: 

at  common  law, 417 

under  statutes  which  cause  the  chose  in  action  to 

survive, 420,  423 

how  question  of  assignment  may  be  raised, 443 

oral  assignment,  sufficient  when, 446,  448 

See  also  Assignee,  Real  Party  in  Interest,  Plaintiff. 

California 

when   code  pleading  enacted  in, 4 

statutes,    5,  6,  78,  85,  189 

eases,    43,  55,  96,  103,  392,  442,  472,  475,  481,  489,  517,  617 

Capacity  to  sue 

distinguished   from   right   to    sue, 443 

Causes  of  action 

existing  causes  of  action  not  changed  by  the  code, 90,  137 

no  new  cause  of  action  created  by  the  code 42,  93,  540 

distinction  between  legal  and  equitable  causes,  in  code  pleading. 

54.  66,  70,  99,  108,  128,  136,  139,  145,  149,  158,  170,  172,  185,  186 
distinction  between  causes  in  tort  and  causes  in  contract,  under 

the  code,,. 56,  96,  101,  112.  118,  126,  132,  161,  167,  171,  174,  175, 

[177,  179 


632  GENERAL    INDEX. 

(References  are  to  pages.) 

Causes  of  action — Continued. 

distinction  between   local   and  transitory,   under   the  code, ....  59 

extent  of  relief  possible  when  a  local  and  a  transitory  cause 

are  united  in  an  action  in  a  foreign  jurisdiction, 59 

compound  causes  of  action: 

legal  and  equitable  features  in  one  cause. 53,   155 

different  legal  aspects  in  one  cause, 59,  90,  103,  159 

See  also  Joinder  of  Causes,  Theory  of  Action. 

Certainty  in  pleading 

importance  of,  under  the  code, 121,  131 

Champerty 

what  is, 504 

effect  of  on  the  assignment  of  a  chose  in  action 504 

Chancery,  Court  of 

its  origin  and  jurisdiction, 150 

test  of  its  jurisdiction, 150 

aboliticm  of,  while  its  system  of  jurisprudence  remains  as  a  dis- 
tinct system, 151 

Character  of  action 

how  determined  in  code  pleading, 116 

See  Theory  of  Action. 

Chitty 

"On  Pleading,"  referred  to,   117,  119,  133,  370 

Chose  in  action 

definition   of,    399,    note 

whether  the  term  includes  a  right  of  action  in  tort, 399,  note 

See  also  Assignment  of  Chose  in  Action. 

Civil  action 

creation   of,    5,    6 

the  one  fcn-m  of: 

its  importance  in  the  system  of  code  pleading   13 

its  contrast  with  the  formulary  system  of  common  law 

pleading,     10,    11,    19,    32 

departure  from  the  principle  of,   in  the  special  proceed- 
ing,     78,   83,   84   note 

its  effect: 

in  that  pleading  is  no  longer  according  to  forms  of 

action,    15,    17,    18,   20,    32,   42,   44 

in    that   pleading   is   now   according    to    substantive 

causes  of  action, 18.  .32,  40.  .50,  101,  111,  120, 

12(5.  128.  1.32.  130.  139,  147.  149 
use  of  term  "form  of  action"  tiiidev  the  code.  .  .  .72,  102,  124 

statutory   definition    of,    78 

takes  the  place  of  the  actions  at  law  and  the  suit  in  equity.  ,  79 

whether  mandamus  is  a  civil  action  under  the  code 81 


GENERAL  INDEX.  633 

(References  are  to  pages.) 

Civil  action — Continued. 

whetlxer   statutory  partition   is  a   civil  action  under  the 

code,     '  ^ 

the  civil   action  called  a  "suit  in  equity,"  instance,    

[72,  cf.  75,  137,  151 

the  civil  action  called  an  "action  at  law,"  instance, 

[72,  137,  151 

forms   of   relief   in: 
1.     In  General. 

relief  according  to  the  cause  of  action  pleaded,    

[46,  50,  56,  93,  101,  110 
relief  to  full  extent  of  consistent  causes  of  action  pleaded 

and  proven, 61,  70,  103,  157,  159,  compare  147 

legal  and  equitable  relief  on  a  legal  and  equitable  cause 

pleaded    and   proven,    15,    38,    48,    52,    70 

equitable  defence  to  legal  claim,   17,  64,  68,  83,  158 

relief   without   formal   definition   of   defendant's   legal   re- 
lation  to  plaintiff,    18,   32 

equitable  relief  on  an  equitable  cause  pleaded  and  proven, 

plaintiff    praying   for    legal    relief,    46,    145 

legal  relief  on  a  legal  cause  pleaded  and  proven,  plaintiff 

praying  for  equitable  relief,  50,  55,  108,  128,  153,  157,  172,  182 
legal  relief  on  a  legal  and  an  equitable  cause  pleaded  and 

legal    cause   proven,    48,    compare   40 

no  relief  if   a   substantive  fact  of   the   cause   of   action 

pleaded  is  lacking, 93,  110,  139,  142 

no  relief  on  a  legal  cause  pleaded    when  evidence  shows 

only  a   distinct   equitable  cause,    136 

no   relief  on  an  equitable  cause  pleaded  when  evidence 

shows  only  a  distinct  legal  cause,    149,  compare  99 

no  relief  on  a  cause  in  tort  pleaded  when  evidence  shows 

only  a  cause  in  contract,  ..101,  115, 

126,  132,  135,  compare  56 
no  relief  in  a  cause  in  contract  pleaded  when  evidence 

shows  only  a  cause  in  tort,   171,  174 

2.     In  Special. 

damages   and   mandatory   injunction,    15 

money  judgment  between  two  partnerships,  when  a  mem- 
ber of  the  plaintiff  partnership   is  a  member  of  the 

defendant   partnership    also,    41 

recovery  of  part  of  entire  debt,  assigned  to  plaintiff,  with- 
out  joinder   of   assignor,    43 

reformation    of    a    policy    of    insurance     and    judgment 

thereon,     48 

judgment  for  an  ascertained  balance,  plaintiff  supposing 

that  his  claim  had  been  for  an  accounting,   55 

no   relief  when   cause   in   replevin   with   evidence   only   of 

conversion  of  the  chattels  into  realty,    56 


634  GENERAL  INDEX. 

(References  are  to  pages.) 

Civil  action^ — Continued. 

relief  in  trover,  the  complaint  setting  up  also  cause  in 

trespass    quare    clausum,    59 

defence  of  res  adjudicata  in  equity,  action  being  by  a  part- 

nei-  against  his  co-partner  for  injury  of  partnership 

propei'ty,     65 

conditional  judgment  in  an  action  brought  for  legal  relief 

on  a  lost  certificate  of  deposit,    68 

judgment  for  possession  of  land,  with  ancillary  equitable 

relief,     70 

forfeiture  of  lease  or  injunction,  in  the  alternative,   ....  87 

judgment  covering  injury  to  person  and  to  property,   ....  90 

i-elief  in  contract,  a  tort  being  waived,   98 

relief  in  tort,  a  contract  being  waived,    175 

no  recovery  in  acticm  by  equitable  owner  suing  on  legal 

grounds,    99 

relief  in  contract  and  tort,  on  a  cause  growing  out  of 

contract,     103 

relief  in  contract,  with  allegations  appropriate  to  a  com- 
plaint in  tort,  and  with  summons  in  tort,   Ill 

relief  in  tort,  with  allegations  appropriate  to  a  complaint 

in  contract,    115 

relief  in  tort,  with  allegations  sufficient  for  a  complaint 

in   contract,    120 

damages  for  breach  of  contract,  plaintiff  praying  for   a 

specific    sum   as   wages,    155 

relief  in  contract,  with  allegation  of  incidental  elements  in 

tort,    179,    159 

relief  in  tort,  with  allegation   of   incidental   elements   in 

contract,    177,  IGl,  168 

a  judgment  at  law,  plaintiff  praying  for  an  accounting,. .         172 
legal  and  equitable  relief,  with  right  of  trial  by  jury  in 

part,   185,   186 

Classification 

effect  of  the  creation  of  the  one  form  of  action  o^  the  historic 

classification  of  our  law, 11,  86 

Clerk  and  Lindsell 

"On  Torts,"  quoted,   405,  note 

Code  pleading 

origin  of, 1 

characteristics  of, 2 

geographical  extent  of, 3 

Code  states 

enumeration  of, 3 

when    code    pleading    enacted    in    the    different    states    of    the 

Union, 4 


GENERAL  INDEX.  635 

(lieferences  are  to  pages.) 

Collection 

assignment  for : 

whether  assignee  may  sue  in  his  own  name — if  assignment 

is  in  terms  for  collection, 490,  500,  501,  note,  515 

if  assignment  is  absolute  on  its  face,    510,  511,  note 

Colorado 

when  code  pleading  enacted   in 4 

statutes  of,    8,  192 

cases, 1^''  4^^ 

Common  counts 

use  of  under  the  codes,  instance HO 

Common  law  pleading 

in  contrast  with  code  pleading 2,  19.  33,  43,  47,  Gl,  65,  144 

Complaint 

contents   of,    113,  184 

effect  on  original  of  an  amended  complaint, 72 

precedents  and  forms,  approved  or  criticised: 

in   replevin,    56 

against  guardian  of  infants,    HO 

in  damages  for  fraud,   136 

against  railway  company  for  personal   injury,  on  ground 

of    tort,     l'" 

for  reco^'ery  on  alternate  grounds,    181 

by  payee  of  dishonored  check  against  a  bank,    306 

by  beneficiary  under  a  bond  made  to  another,   349 

by  assignee  for  personal  injury,    399 

by  assignee  for  injury  to  property,    402 

to  recover   possession  of  land,    455 

by  executive  agent  as  trustee  of  an  express  trust,   546 

by  an  administrator  in  his  own  right  and  in  his  represen- 
tative   capacity,    600 

by  commissioners  without  personal  right  to  sue,   615 

Conclusion  of  law 

of  no  avail  in  pleading '  •' 

instances   of ^•^>  00- 

Connecticut 

when  code  pleading  enacted  in 4 

statutes,    8,    192.    419,   note,  543 

cases ''lO 

Construction  of  pleadings 
instances: 

to  determine  the  character  of  the  cause  of  action,  whether 

at  law  or  in  equity '0,  146 


636  GENERAL  INDEX, 

(References  are  to  pages.) 
CoNSTEUCTiON  OP  PLEADINGS — Continued. 

to  determine  the  character  of  a   cause  of  action,  whether 

in  tort  or  in  contract,   Ill,  119,  175,  177,  179 

to  determine  right  to  trial  by  jury, 70.  14»; 

to   determine    whether    in    trespass    quare    clausum    or    in 

trover, 59 

to  determine  whether  a  gift  intervivos  is  pleaded,   143 

complaint  held  to  state  a  cause  in  contract,  notwithstand- 
ing certain  allegations  appropriate  only  to  a  cause  in 
tort,   when, 114 

complaint  held  to  state  a  cause  in  tort,  notwithstanding 
allegations    appropriate  to  a  cavise  in  contract,  when 

upon   a    demurrer, 120 

after  a  trial  on  the  facts, 116 

effect  on  the  character  of  a  complaint,  otherwise  in  tort, 

of   incidental   matter   in   contract, 178 

effect  on  the  character  of  a  complaint,  otherwise  in  con- 
tract, of  incidental   matter   in   tort, 179 

Contract  and  tort 

distinction  between  forms  of  action  ex  contractu  and  forms  of 

action  ex  delicto  abolished  by  the  code,    ..43,  59,   103,   111,   113, 

[117,   159 
distinction   between   causes  ex  contractu  and  causes  ex  delicto 

preserved  in  the  code, 54,  60,  70.  99,  108,  128,  136.  139,  145, 

[149,  158,  170.  172.  185.  180 
election  between  cause  in  contract  and  cause  in   tort,   in   code 

pleading,  instances, 90.   101.   107.   170 

election,  how  shown  in  case  of  an  assignment,  when  the  tort  is 

not   assignable, 413 

Conversion 

instance  of  sufficient  allegation  of. 176 

Counterclaim 

instance  of,   64 

effect  of  decree  settling  all  matters  in  issue  in  the  cause, 64 

Counts 

use  of  several,  under  the  code,  to  state  the  same  claim  in  differ- 
ent aspects, 43 

a  coimt  must  not  be  ambulatory, 123 

a  cause  ex  contractu  with  a  contingent  cause  ex  delicto,  in  gre- 

mio,  in  one  coimt,  is  bad  pleading  under  the  code. 133 

effect,  if  two  or  more  causes  are  pleaded  in  one  count : 

on  demurrer, 120,  123 

after  trial  on  the  facts,    100 

Cross-complaint 

instance  of, 04 


GENERAL  INDEX.  637 

(References  are  to  pages.) 
Deceit 

cause  for  distinguished  from  cause  for  breach  of  warranty,.... 

[11.5,  1.32.  1.59 

Default 

if  no  answer,   relief  liniitiMl  to  tliat  ])rayed   for 184 

on  general   demurrer,   relief   according   to   the   cause   of   action 

pleaded,   irrespective  of  the   prayer, 184 

Demurrer 

for  failure  to  state  facts,  waives  objection  for  want  of  parties,.         45 

requires   the   coairt   to   determine   what   cause  of   action    is   at- 
tempted to  be  pleaded,  and  whether  facts  sufficient  to  con- 
stitute this  cause  are  stated, 120,  123,  note,  140,  142 

in  actions  for  equitable  relief  permits  objection  that  plaintiff 

has   adequate   remedy   at   law,    140 

does  not  lie  on  the  ground  that  the  cause  of  action  stated  does 

not  warrant  the  relief  prayed  for, 172.    184 

searches  the  record, 4,32 

Descriptio   personae 

use  of  term  "agent"  as, 198,  221 

use  of  term  "administrator"  as, 601,  607,  note 

in  general,  that  an  affix  to  the  name  of  a  party  is  a  mere  de- 
scriptio  personae. 616 

Duplicity 

instance  of  in  a  complaint, 1.33 

Election 

between  cause  at  law  and  cause  in  equity 146 

between  cause  in  contract  and  cause  in  tort, 96,  161,  167,  173 

effect  of  election  on  the  range  of  evidence, 96 

England 

statutes, .377 

eases, 18.167 

"Equity  case" 

significance  of  the  phrase: 

in  contrast  with  "civil  actions" 75 

to  denote  a  civil  action  for  equitable  relief, 72 

Error 

judgment   not   to   be   reversed    for.   unless   available   under   the 

principles  of  pleading 100 

Evidence 

should  not  be  pleaded,  under  the  code, 22 

effect  of  pleading  matters  of,  illustrated, 47,  73 

range  of,  as  affected  by  election  between  tort  and  contract,.  ...  96 

oral,  when  part  only  of  a  contract  has  been  reduced  to  writing, 

to  show  residue. 261 


638  GENERAL    INDEX. 

(References  are  to  pages.) 

Executor  or  administrator 

real  party  in  interest,  when, 520,  531,  GOO 

must  sue  in  representative  character,  when 600 

may  sue  in  his  individual  right,  when 001,  603,  605,  606,  note 

Failure  of  proof 

distinguished   from   variance,    41,    115,    136,    149 

Foreign  law 

how  to  be  pleaded 435 

Forms  of  action 

abolished,   5,  98,  103,  113,  117,  153 

causes  of  action  unchanged,   90,  93,  96,  108,  149 

use  of  term  "form  of  action"  in  code  pleading 72,  102,  124 

Fraud 

as  an  equitable  defence. 36 

General  denial 

raises  question  of  right  to   sue.   although  waiving  question  of 

capacity  to   sue,    442 

raises  question  of  the  assignment  of  a  chose  in  action,   444 

Gift 

allegation  of  elements  of 143 

Gravamen  of  action 

See  Theory  of  Action. 

Guardian 

as  to  suing  in  his  rywn  nanie  at  conuuon  law,  for  property  of  in- 
fant,         608 

statutory  right  to  sue  in  some  states,  608,  note 

whether  a  general  guardian  may  sue  as  a  trustee  of  an  express 

trust \ 609,610 

when  guardian  contracts  in  his  own  name 610,  note 

as  to  action  by  guardian  after  ward  becomes  of  age 610 

Idaho 

code  pleading  enacted   in,  wiien,    4 

statutes,     7,     191 

Illinois 

cases, 423 

Implied  assumpsit 

promise,  how  pleaded  under  the  code 93 

Implied  trust 

distinguislied    from    express    trust 438 


GENERAL   INDEX,  639 

(References  are  to  pages.) 

Indiana 

code  pleading  enacted  in,  when, 4 

statutes    of 0,  190 

cases 56,  110,  142,  145,  434.  441,  455,  557,  G12,  618 

Iowa 

code   pleading  enacted   in,   when,    4 

statutes,    6,    78,    190,    419 

cases.,    ..161,  194,  201.  243,  201,  333.  420,  448,  503,  532,  535, 

[584,  592,  610 

Joinder  of  causes 

what  causes  may  be  joined  under  the  code, 40,  91 

provisions  of  the  code  as  to,  to  be  liberally  construed 106 

cause  at  law  with  cause  in  equity,  under  the  code: 

enactments   of   code   as   to 40,    54,    55 

whether  constitutional, 38 

instances  of  such  joinder,   16,  40,  49,  53.  87 

different  causes  at  law: 

instances,    159 

the  "same  transaction," 1.5 

one  occurrence  resulting  in  a  compound   injury  gives  but  one 

cause  of  action 90,   103 

separate  causes  united  in  one  count,  eflfect  if  no  objection 103,  159 

Joinder  of  parties 

effect    of   creation   of   one   form   of   action   as    to   common    law 

rules   of   joinder 42 

rule  as  to  joinder  of  plaintiffs  when  a  common  member  of 
a  plaintiff  and  a  defendant  partnership  refuses  to  join  as 
plaintiff',    42 

undisclosed  principal  joining  with  disclosed  principal  as  real  par- 
ty  in  interest 212 

undisclosed  principal  suing  alone  for  his  portion  of  a  divisible 

loss, 217 

defect  of  parties,  waived,  when, 45,  439 

Judgment 

conditional,  in  action  begun  for  legal  relief 68 

Judicature   acts 

provision  under  as  to  the  assignment  of  choses  in  action 377 

Jury  trial 

constitutional  preservation   of, 185 

can  not  be  impaired  by  statute 66 

may  be   extended   by   statute 66 

principle  of  construction  of  pleading  when  application  made  for 

jury   trial, 146 

right  to,  waived   when, 145,    185,  187 

right  to  not  waived, 152,  185 


640  GENERAL   INDEX. 

(References  are  to  pages.) 

Jury  trial — Continued. 

a  cause,  for  the  sake  of,   1^*^ 

effect  under  the  code  if,  after  demand  for  a  jury,  the  court  tries 
without  a  jury  a  cause  which  should  have  been  tried  witli 


a   jury, 


186 


Kansas 

code  pleading  enacted  in,  when, 4 

statutes, ".  "8,  191 

cases, 59,  181,  216,  255,  289,  470,  479,  567,  582 

Kentucky 

code  pleading  enacted   in,   when,    4 

statutes 5,    6,    78,  190 

cases,   432 

Law  and  equity 

abolition  of  the  distinction  between  actions  at  law  and  suits  in 
equity, 

the  cornerstone  of  code  pleading 13 

enactments  as  to 5,  6 

effect  of, 

illustrated, 43,   47,   448 

whether  general  abolition  is  constitutional,   23,  26 

elTect  of  the  violation  of  the  procedural  distinction  in 

the  states  which  retain  it,    63,  448 

the  systems  of  legal  and  equitable  jurisprudence  preserved 

under  the  code  as  distinct  systems 100,   151 

in  general   a  distincticm  of  substantive  law,   and  not  pro- 
cedural,   05,  136,  139,  141.  note.  149,  152 

a  complaint  can  not  be  amended  from  one  in  law 

to  one  in  equity,  when, 152 

amendment   permitted,   when,    72 

if  no  objection  made  that  a  claim  in  equity  is  being 

asserted  at  law,  the  objection  is  waived,  when.       44S 
im])ortant  as  a  procedural  distinction,  when, 73,   146 

Law  Quarterly  Review 

quoted,    399,   note,    422   note 

Legal    conclusion 

pleading  of  and  effect 73.   435 

Maine,  Sir  Henry 

"Early  Law  and  Custom,"  quoted, 9 

Mandamus 

whether   a   civil   action, 81 

whether  barred  by   statute   of   limitation 82 

character  of  the  limitation  which  may  be  applied 83 

Massachusetts 

statutory  pleading  in — statutes  of,    419,  note 


GENERAL   INDEX.  B41 

(References  are  to  pages.) 

Mental  suffering 

Ijleading  held  sufficient  to  permit  recovery  for,  altlioufrh  no  phys- 
ical injury 10(i,   lOG,   1G8 

Minnesota 

code   pleading  enacted   in,   when,    4 

statutes G,   I!)0 

cases 337,  515.  590,  008 

Missouri 

code   pleading   enacted    in,   when 4 

statutes, 5.   (',  18!* 

cases, 9!),  250,  259,  341,  348,  433,  447.  476,  511,  544,  572,  585,  594 

Montana 

code  pleading  enacted   in,   when.    4 

statutes 7,  191 

Motion 

to  strike  out 20.  23,   114 

to  make  definite  and  certain, 123,   note 

to  strike  from  the  files 15,   120 

for   a   non-suit 96,    112,   437 

to  dismiss, 46 

for  judgment  non  obstante  veredicto 520 

Nash 

"Pleading  and  Practice,"  quoted,    86 

Negotiability 

distinguished   from   assignability 448 

Nebraska 

code   pleading  enacted   in,   when, 4 

statutes,     7,    191.    203 

cases 68,  203,   507.  509 

New  Jersey 

statutes   of 523 

Nevada 

code  pleading  enacted  in.  when, 4 

statutes,     7,    191 

New  Mexico 

code  pleading  enacted  in.  when 4 

statutes 8,   192 

New  York 

code  pleading  enacted  in,  when 4 

statutes,   .  .  .^ 5,  6,  75,  78,  188,  ISO.  200 

cases.  15.  17.  20.  23.  32.  ?.^.  .38.  41.  40.  48.  52.  7.i,  87,  90.  93, 
101.   Ill,   115,   128,   135.   1.30.   149.   153.   170.   171,   172,   174. 


W2  GENERAL   INDEX, 

(References  are  to  pages.) 
New  York — Continued. 

175,  179,  182,  185,  186,  196,  202,  204,  206,  212,  219,  225, 
227,  228,  230,  233,  241,  249,  253,  265,  270,  276,  284,  314, 
327,  329,  354,  300,  370,  372,  378,  381,  399,  402,  407,  412, 
462,  466,  482,  486,  488,  491,  493,  500,  527,  546,  560,  579, 

[587,  590,  600,  603,  614,  615 
Commissioners  on  Practice  and  Pleadings,  quoted,   12,  376 

Non-suit 

motion  for  on  the  ground  that  tlie  evidence  does  not  support 

the  complaint,   96,  112 

instance  of,    102 

North   Carolina 

code  pleading  enacted  in,  when, 4 

statutes,   7,   79,  191 

cases,    581 

North  Dakota 

code  pleading  enacted  in,  when,    4 

statutes,  7,  78,  191 

Odgers 

"Principles  of  Pleading,"  quoted,    14 

in  Encyclopaedia  of  Laws  of  England,  quoted 377 

Ohio 

code  pleading  enacted  in,  when, 4 

statutes,    5,   0,   189,   190,   419,   note 

cases,  66,  70,  79,  80,  81,  108,  155,  159,  209,  214,  263,  293,  306, 

[383,  449,  496,  497,  520,  537,  541,  568,  578 
Commissioners  on   Practice   and   Pleadings,   quoted,    12,   84 

Oklahoma 

code  pleading  enacted  in,  when,  4 

statutes,    8,   192 

Oregon 

code  pleading  enacted  in,  when,   4 

statutes,    6,   191 

cases,    605 

Ownership 

sufficient   allegation    of,    instance,    176 

Paragraphs 

See  Counts. 

Parties 

new  may  be  broaight  in,  when,   45 

defect  of  parties  defendant,  how  objected  to,   -15 

See  Plaintiff. 


GKNKKAI,   InDKX.  ()4;i 

(  Kcrfrciices  are  to  pages.) 

Partition 

noft   a   civil    action,    when, 79 

is  a  civil  action,  wlien, 80 

Partnership 

action    by,    how   brouglit, 41 

Pennsylvania 

cases 522 

Petition 

See  Complaint. 

Plaintiff 

real  party  in  interest  to  be: 

enactment  as  to,    1S8^   192 

imperative  nature  of  the  rule,    205,   438,   U22 

defence  that  plaintiff  is  not  the  real  party  in  interest,  434,  485,  494 

form  of  answer  held  sufficient, 434,  494 

raised   by   general    denial,   when,    444,    note 

effect  of  a  general  averment  that  plaintiff  is  not  a  real 

party  in   interest, 441,  442 

effect  of  an  averment  that  under  the  law  of  another 

state    (the  lex  loci)    the  plaintiff  may  sue, 435 

character  of  evidence  held  sufficient, 494 

defence  available  on  demurrer,  when,   022 

who  may  be  as  the  real  party  in  interest. 

( See  Real  Party  in  Interest.  ) 
when  one  who  is  not  a  real  party  in  interest  may  sue: 

trustee  of  express  trust, 257,  544,  546,  553,  note 

enactments 188,  192 

trustee  of  implied  trust  may  not  sue, ....438,   581,   585 

trustee  of  implied  trust  may  sue,  when, 586 

proper  party  plaintiff  on  death  of  a  trustee  and 
transfer  of  the  chose  to  his  personal  repre- 
sentative,            579 

beneficiary  may   intervene,   when, 596,  598 

one  with  whom  or  in  whose  name  a  contract  is  made 
for  the  benefit  of  another,  as  plaintiff: 

enactment 188,    note,    and    192 

instances,    198,  216,   227,  230,   546,  560,   567.   576 

executor  or  administrator,  as  plaintiff: 

enactments,     188.  189 

instances,    600,    603,    605 

guardian    as    plaintiff: 

enactments,     189 

instances,    608.   610 


644  GENERAL   INDEX. 

(Keferences  are  to  pages.) 

Plaintiff — Continued. 

a  ijerson  expressly  authoiizcd  by  statute: 

enactments,    188 

instances,    612,  013,  614 

as  to  pleading  the  representative  character 615 

can  only  sue  when  authorized, 618 

whether  actual  beneficiary  may  sue, 

[618,  619.  622,  624,  627,  note 

Pollock  and  Maitland 

"History  of  English  Law,"  quoted, 11 

Pomeroy 

"Code   Eemedies,"   qtioted,    13.    155 

Possession 

instance  of  stifficient  allegation  of 176 

Practice  conformity  act 

its    effect    illustrated 200 

Prayer  for  relief 

part  of  the  complaint,  but  no  part  of  cause  of  action, 155,  176 

expresses  the  plaintiff's  theory  of  the  consequence  which  the  law 

attaches  to  his  statement  of  facts 157,  158 

does  not  per  se  determine  the  character  of  the  action  or  extent 
of  relief  to  be  granted, 

either   on   demurrer, 182 

or  after  trial  on  the  facts,  40.  48,  50,  70,  128,  146.  156,  157,  158 

but  limits  the  relief  on  judgment  by  default,   184 

may  be  regarded,  in  a  litigated  case,  when, 61 

effect  of  a  prayer  for  equitable  relief  when  the  cause 

pleaded  is  for  legal  relief  only 173 

effect  of   a   prayer    for    relief   ex    contractu    when    the 

cause  pleaded  is  wholly  ex  delicto 170 

prayer  for  alternative  relief,  on  one  count, 181 

Presumptions 

facts  presumed  by  the  law.   need   not   be  stated 177 

Promise 

allegation   of,   in   pleading 93,   110 

Real  party  in  interest 

proper  party  plaintiff  in  the  civil  action. 

(See  Plaintiff.)  — 

general  nature  of  interest  required  to  constitute 194 

who  may  be: 

one  with   legal   title,   but   without   beneficial   ownership: 

[202,   203.  257,   481 

agent  may  sue 199,  201.  230.  487 

agent  may  not  sue 196.  228.  484.  500.  501,  note.  582 

personal   representative  as 520,   531,   532 


OICNKRAL   INDKX.  645 

( Kefcrences  are  to  pages.) 
Ri:al  paktv  in  lyrKHKtir— Continued. 

one  wiUi   boiR'lifiiil   owiicrsliip: 
undisclosed  iiriiiii|i:il, 

may  sue,   when 2n().   20!).  212.  2U.  21(),  225 

may   iiol    sue,    when 21 'J     225 

a  third  ptMsoii  for  \vh(;st'  heiu'lil  a  promise  is  made  to  aiiotlier : 
wlieii  tlie  tliird   |»erson  may  sue, 

[233,  241,  2-].}.  24!»,  253.  255,  270,  284,  2!)3,  348,  354,  300 
tlie  assignee   of   tlie   tiiird   person    beneficiary   may 

sue,    258,  2(il 

edVct  of   the   reeission   of  the  i)romise: 

beneficiary  may  not  sue,  when 203 

precedent  of  pleading  herein, 205,  note 

beneficiary  may  still  sue.  when 205 

effect  if  consideration  to  promisor  fails 275 

when  the  third  person  may  not  sue: 

promise  not  intendeil   foi-  his  benefit, 

[270,  280,  208,  300,  310 
effect  of  express   averment   that  contract  was 
intended   for  the  benefit  of  th.e  third  per- 
son,     294,  note 

no  obligation  on  ])romisee  to  third  person. 

[314,  318,  327,  32!).  ,333,  337.  341,  370,  372 
equitable  subrogation  as  the  reason  for  the  rule.  .323,  336 
instance  of  obligations  on  promisee  held  sufficient 

to  sustain  an  action  by  the  third  person,  348,  354,  300 
the  assignee  of  a  chose  in  action: 

absolute  assignment  before  action  brought 

under    oral    assignment 44.5 

assignee  of   an   account 447 

assignee  of  a  note  and  guaranty  without  indorse- 
ment,             448 

effect,   in   Iowa,   if   such   action   is  at  law 

without  objection 448 

restriction  of  special  procedural  rights  to  the  legal 

holder, 440.  451.  note 

assignee  of  a   partnership   debt 451,   452.   note 

equitable  assignee,  without  personal  knowledge...        452 
how  a  grantee  of  land  in  adverse  occupancy  may 

sue  for  possession 455.  401 

absolute  a.ssignment  pcndrutr   lilc 

action     still     in     name    of    assignor,    or    assignee 

may  be  substituted 203.   404 

substituted   assignee   with    cajiacity   to   sue.   when 

assignor  lacked  capacity 402.   403.  note 

dismissal    by    assignee 400 

assignee  must  be  substituted  on  death  of  assignor.       470 
but  assignee  prosecuting  in  name  of  deceased 

assignor  is  bound 473 

no  substitution  on  assignment  after  judgment....        475 


646  GENERAI^   INDEX. 

( Kefei-eiices  are  to  pages.) 
Real  pauty  in  interest — Continued. 

assignment    subject    to    a    condition: 

assignee  with  valid  title,  but  all  the  fruit  of  the 

action   to  go  to   the   assignor,    476,   480,   488, 

[489,  491,  497,  503,  511,  507,  509,  510,  note 

assignee  of  note  as  collateral  security, 477 

transferee  for  collateral  security,  without  indorse- 
ment,             479 

whether  beneficial  owner  may  intervene, 481,  482 

not  a  shanr  transfer,  when, 491 

true  nature  of  the  test  to  be  applied.  ..  .491,   517,   547 
whether  assignee  may  sue  if  assignment  is  in  terms 

"for    collection,"' 496,    500,    501,   note,    515 

effect    if   assignment    is    intended    to   defeat   juris- 
diction of  federal  courts. 503 

the  real  party  in  interest  in  action  for  wrongful  death : 

jiersonal  representative,  as  such 520,   531 

actual  beneficiary  need  not  be 520,  522,  531 

actual  beneficiarj^  may  sue,  when, 527 

heirs  at  law,  when  may  be  the  real  parties  in  interest 

in   actions  as  to   the  personalty, 532,   535 

a  public  officer,  when  may  be  the  real  party  in  interest 

as  to  private  claims, 537,  541 

Relief 

not  determined  in  the  civil  action,  by  the  procedural  distinctions 

between  actions  at  law  and  the  suit  in  equity 47 

nor  by  the  theory  of  the  pleader 47.  49 

nor,  in  a  litigated  case,  by  the  prayer  for  relief, 47.  49.  55.  137 

determined  by  the  facts  pleaded  and  proven 47,  49,  59,  114 

must  be  consistent  with  the  ease  made  in  the  pleading  and  em- 
braced within  the  issue, 137 

whether   in   an   action   for   replevin,    plaintifl'   may   have   a 

money  judgment   for   conversion. 56 

equitable  relief  granted,  when  legal  relief  only  prayed  for,   in- 
stance.      47 

legal  relief  granted  when   equitable  relief  only  prayed   for.  in- 
stance,     49.   51,   55,    108 

when  the  facts  pleaded  and  proven  warrant  both  legal  relief  and 
equitable  relief,  both  may  be  granted,  in  the  same  action, 

if  consistent 16 

l)>it  if  inconsistent,  plaintiff  must  elect.- 87 

election  between  two   forms  of  relief,   instance  of 146 

alternative  relief,  principle  on  which  granted  under  the  code. .  .  89 

Avhen  part  only  of  the  relief  possible  is  within   tlie  jurisdiction 

of    the    court,    r)9 

Remedies 

classification  of  judicial  remedi(>s 78 

extent  of  the  term  in  code  pleading 89 


GENKKAL    IXUICX.  647 

( Kef erences  are  to  pages.) 

Replevin 

whetlua-  cause  in  replevin  warrants  judgment  for  the  value  of 

chattels  converted  into  realty, 5(5 

Res  adjudicata 

instance  ol".    in   case  of   fraud 37 

decree  in  equity  uuiy  be  res  adjudicata  at  law.  when O.!.   158 

Scienter 

instance   of     averment    of. 119 

Scope  of  pleading 

8ee  'J'liKOKY  OF  Action. 

Sedgwick 

on    "Damages,"    quoted,     105 

South    Carolina 

code  pleading,  enacted  in,   when, 4 

statutes,    8.   70.   192 

cases,     177 

South  Dakota 

code  pleading  enacted   in,   when 4 

statutes,     7,    78,    191 

"Special  action" 

usei  of  term  in  Iowa  code, 78 

Special   proceeding 

relation  of  common  law  procedure  to, 80 

distinctions  of,  preserved  under  the  code. 
See  Causes  of  Action. 

Substantive    law 

distinction  between,  and  the  civil  action, 78.  79,  8.3 

reason   for   the   distinction, S3 

instances   of   the   distinction,    84 

Substitution  of  parties  plaintiff 

instances  of,    4G3,  405,  619,  622,  624,  627,  note 

Suit  in  equity 

no  distinctive  forms   in   code   plpading 137 

preserved   in   effect,    137 

And   see   Civil  Action. 

Surety 

when  he  may  sue  in  his  own  name, 194 

Surplusage 

an  allegation  appropriate  to  a  cause   in   tort,   inay  be   treated 

as   surplusage,   when, 112 

may  not  be  treated  as   surplusage,   when, 116 


648  GENERAL  INDEX. 

( Keferences  are  to  pages.) 

Tenor  of  a  pleading 

See  Theory  of  Action. 

Tort 

waived,  instance  of,   -^^ 

See  Contract  and  Tokt. 
claim  in,  may  l)e  assigned,  when -402,  4U4,  note 

Theory  of  the  action 

whether  under  the  one  form  of  aetion  the  court,  in  a  given  case, 
must  regulate  the  relief  according  to  a  definite  theory  of 

action  expressed   in  the  pleading, 87 

the  occasion  for  a  theory  of  action  in  code  pleading: 

in   the   continuance   of   the   distinctions   between   causes  .of 

action,  54,  50,  59,  86,  90,  93,  96,  102,  112.133,151,  161,  167,  540 
in  the  importance  of  certainty  in  code  pleading,  19,  33,  132,  144,  148 

a  theory  of  action  essential  to  good  pleading, 143 

a  cause  of  aetion  pleaded  under  the  code  should  be  more 
certainly  defined  in  substance  than  was  required  in 

common  law  pleading, 120,  132 

determination  of  the  theory  of  the  action  in  code  pleading: 
theory  of  the  action   not  determined 

by  the  theory  of  the  pleader, 47,  72,  112,  153.  155,  172,  211 

nor  by  the  theory  of  both  parties  and  the  trial  court, .  .  72 
both  parties  may  go  down  to  trial  on  a  particular 
theory,  but  the  recovery  may  l)e  upon  a  differ- 
ent   theory, H*'"' 

nor  by  the  allegation  of  conclusions  of  law 73 

nor  by  the  allegation  of  evidential  facts 73 

nor  by  the  name  given  the  pleading 32,  148,  154,  181 

nor  by  the  prayer   for  relief,  46.   48,   50,   55,   70.   131, 

[146,  150,  158,  172,  184 

but   the   prayer  may   be   regarded,   when 61,   146 

and  on  a  default  judgment  the  prayer  limits  the 

extent   of   relief 184 

nor  by  the  summons,  when 114 

theory  of  the  action  determined 

by  the  cause  of  action  really  pleaded 47,  55,  59,  61. 

[72.  74,  103,  117,  131,  136,  146,  157.  158,  183.  184 
how  the  character  of  a  cause  of  action  pleaded  is  to  be 
ascertained  : 

1.  Tn   General. 

by  the  substantiA-e  facts  alleged  in  the  pleading,.  .        146 

by  "the  overshadowing  facts  pleaded," 143 

"the  court  will  construe  the  pleading  as  proceed- 
ing upon  the  theory  which  is  most  apparent 
and  most  clearlv  outlined  by  the  facts  stated,"        146 


GENERAL  INDEX.  649 

( Kef ert'iices  are  to  pages. ) 
TiiEOKV  or  Till';  actkjx — .Continued. 

wliatevcr  tlie  pleader's  tlicoiy,  and  however  clear- 
ly indieatetl  in  his  pleading,  he  is  entitled, 
in  a  litigated  ease,  to  the  relief  warranted  by 
the  substantive  facts  pleaded  and  proven, 
whether  the  cause  thus  established  accords 
with  or  dider  from  his  theory.  .  .  15,  17,  18,  32, 

[40,  46,  50,  55,  61,  128,  153,  155,  159,  172,  181,  184 
but   the   action   fails   if  a   substivntive   fact   is 

lacking  from  the  cause  of  action  pleaded,       110 
a  comi)laint  stating  a  legal   cause  of  action  only 
does  not  warrant  relief  on  a  distinct  equitable 

cause 137 

a  complaint  stating  an  equitable  cause  only  does 
not      warrant     relief     on     a     distinct     legal 

cause 14!),  compare  09 

a  complaint  stating  a  cause  in  contract  only    does 

not  warrant  relief  in   tort, 171 

nor   a  complaint   in   tort   only,   relief   in   contract, 

[101.   115.   120.  120,   174 
2.     With  respect  to  the  Different  Stages  of  the  Action. 
Before  issue  on  the  facts. 

the  distinction  recognized, 122 

on    motion    to    make    definite. 

the  precise  nature  of  the  cause  of  action 

to    be    made    apparent, 123.    note 

on    demurrer. 

the   whole   pleading   demurred   to  will   be 

considered 120,  123,  139,  141,  note,  142 

upon  a  demurrer,  the  court  will  decide 
what  cause  of  action  the  pleading  de- 
murred to  attempts  to  set  up,  and 
whether  the  pleading  states  facts  suf- 
ficient   to    constitute    this    cause    of 

action, 120,  123,  note,  142 

a  cause  of  action  can  not,  on  demurrer,  be 

"fish,    fiesh.    or    fowl." 123 

when  the  whole  scope  and  tenor  of  the 
complaint  demurred  to  are  in  tort  and 
the  complaint  is  insufficient  for  such 
cause,  the  demurrer  will  be  sustained, 
although  facts  sufficient  for  a  cause 
in  contract  appear  among  those  al- 
leged in  the  complaint 120,   142,   172 

when  the  whole  scope  and  tenor  of  a  com- 
]daint  demurred  to  are  for  an  equitable 
cause  only,  and  thecomplaintis  insuffi- 
cient for  such  cause,  the  demurrer 
will  be  sustained,  although  facts  suf- 
ficient for  a  legal  cause  appear  among 
those  alleged  in  the  complaint, 1 30 


650  GENERAL   INDEX. 

(References  are  to  pages.) 

Theory  of  the  action — Continued. 

the  cbaiacter  of  the  pleading  demurred  to 
may  be  determined  by  a  single  phrase, 

[12U,   compare   120 
but    isolated     and     detached     allegations 

may  be  disregarded, 1-1-5 

if  a  complaint  states  a  cause  of  action  at 
law     only,     and     is    sufficient     there- 
in, it  is  not  demurrable,  because  equi- 
table  relief    only    is    prayed, ..55,    172,    182 
on    motion    to    strike    from    the    files. 

the   rule   stated,    l-'» 

after    issue   on    the    facts : 

the   court   need    not    define    the    theory    of    the 

action,    when,    1^^^ 

no  particular  phrase  shuts  out  a  party  from 
the  relief  warranted  by  the  cause  of  action 

substantially   pleaded   and   proved, 414 

an  allegation  cliaracteristic  of  a  cause  in  tort 
may  be  disregarded  and  the  complaint 
treated  as  for  a  cause  in  contract,  when.  111 
if  a  complaint,  while  incidentally  stating  the 
facts  of  a  cause  in  contract,  sets  up,  in  full 
and  formal  statement,  as  one  cause,  all 
the  elements  of  a  cause  in  tort,  the  theory 
of  the  action  is  fixed  in  tort,  and  the  plain- 
tiff can  not  recover  in  contract  on  the  evi- 
dence,          115 

in  the  absence  of  objection  by  motion  or  de- 
murrer a  complaint  in  a  double  aspect 
permits  a  judgment  on  whichever  cause 
is  established  by  the  evidence,  103,  13G,  131.  151 
an  equitable  cause  and  legal  cause  in 
one  count,   with   jn-ayer   for  equitable 

relief,    131 

a  cause   in   tort   and    a  cause  in  contract 

in   one  count 1(«,   159,   compare   18.5 

Trustee  of  express  trust 

may  sue  in  his  own  name: 

enactments   as   to,    188-1.)- 

W'ho  is  a  trustee  of  an  exjiress  trust. 

instances, 544,  540,  553.  note.  55",  560,  5Cu,  508,  572,  575, 

[note,  57G 
wliether  distinguishable  from  one  with  whom  a  contract  is 

made  for  the  benefit  of  another, 543 

distinguished  from  trustee  of  implied  trust 438,  584 

indirect  interest  in  the  performance  of  a  contract  does  not 

constitute, '"^ 


GKNKRAL   INDEX.  651 

(References  are  to  pages.) 
TiiusTicK  oi'  K.xi'iiKs.s  TKUST — Continued. 

wlu'tlier  a  receiver  is, 590 

whether   a  general  guardian   is (i08,   (iUO,   note 

trusteeship  not  annulled  by  removal  of  its  occasion, 578 

nor  by  a  divisioii  of  the  beneficial  interest 595 

Ijeneficiary  may  sue  in  his  stead,   when,    500,  598 

Trespass  on  the  case 

cause  in,  jircserved  under  the  code, 92 

United  States 

cases, ins,  28G,  208,  318,  385,  404.  530,  623 

Utah 

code   pleading   enacted   in,   when,    4 

statutes  of,    8,  19^ 

Variance 

importance  of  amendment  in  case  of, 134 

instance    of, 174 

distinguished  from  failure  of  proof 41,  115,  130,  149 

Waiver 

of  contract,  and  suit  in  tort,    135,  175,  177 

of  tort,  and  suit  on  contract,    179,  compare  107 

Washington 

code  pleading   enacted   in,   when 4 

statutes,    7,  191 

cases, 158 

Wisconsin 

code  pleading   enacted   in,   v,iien 4 

statutes, 7,  78,  191 

cases, 50,  120,  120,  132.  139,  147,  410,  430,  445,  452,  477,  570,  613 

Wrongful   death 

action   for,   l)ronght  by   whom,    520,  522 

Wyoming 

code  pleading  enacted   in.   Avhen 4 

statutes, .8,  192 


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